10 Landmark Judgement nn Deficiency of Service -Under New Consumer Act

The Consumer Protection Act of 2019, which comprehensively revised the existing laws was signed into law on August 9, 2019. The Act established six major consumer rights, including the ability to:
(i) be protected from the marketing of goods and services that are hazardous to life and property;
(ii) be informed about the quality, quantity, potency, purity, standard, and price of goods or services;
(iii) be ensured of access to a wide variety of goods or services at competitive prices; and
(iv) seek redress for unfair or restrictive practices. It also included a heavy penalty for misleading ads (ten lakh for the first offence and up to fifty lakhs for subsequent offences).

1. Sapient Corporation Employees vs Hdfc Bank Ltd. & Ors. on 1 November 2012
   The Apex court on 2nd November,2020 dismissed the appeal of Imperia structures limited Vs Anil Patni & Another against order passed by the National Consumer Dispute Resolution Council when the jurisdiction of NCDRC to entertain the complaint in view of the registration under the Real Estate Regulation Act (RERA) was subject matter of challenge The Apex Court held that it has constantly been held that the remedies available under the provisions of the Consumer Protection Act are additional remedies over and beyond those made available so under special statutes; and that the availability of a substitute remedy is no bar to entertaining a complaint under the Consumer Protection Act. This decision will be useful in all cases where builders do not provide flats, and it is recommended to file a complaint with the consumer forum in addition to Real Estate Regulation Act (RERA).

2. Springs Meadows Hospital Vs. Harjol Ahluwalia 1998(2) SCALE 456 (SC)
   

The case decision was given by NCDRC (National Consumer Disputes Redressal Commission) first; which was then challenged in the Hon’ble Supreme Court with a question of law consists; whether the case comes under the Consumer Protection Act,1986; and whether both the Petitioner comes under the definition of Consumer in Consumer Protec The case involved medical negligence. The question here is whether or not a medical negligence case will fall under the purview of the Consumer Protection Act of 1986.
The National Consumer Disputes Redressal Commission held that since the resident doctor and nurse were employees of the appellant hospital; the latter was Liable and awarded compensation of Rs. 12.51 Lakh to the child and of Rs.5 lakh to the parents for acute mental agony. The Supreme Court dismissed the appeal with costs of Rs. 5,000.

1. M/S Imperia Structures Ltd. Vs. Anil Patni On 2 November 2020.
   On November 2, 2020, the Supreme Court dismissed an appeal against an order issued by the National Consumer Dispute Resolution Council in which the NCDRC’s jurisdiction to hear the complaint was challenged due to the registration under the Real Estate Regulation Act (RERA). The Supreme Court held that the remedies available under the Consumer Protection Act, 2019 are additional remedies over and above all other remedies available, including those made available under any special legislation, and that the existence of an alternative remedy is not a bar to the Consumer Protection Act, 2019 being considered.
   The Apex court imposed a penalty of ₹25,000 on the complainant trust that would be paid to the HDFC Bank, for this false litigation.

2. Tarun Kumar Ghai Vs Malibu Estate Pvt Ltd, NCDRC, 2008, CPJ 309
   This case dealt with INEQUITABLE AGREEMENT. The issue of the case was what one should do, if a builder forces you to pay penal interest, but, he does not pay any compensation for delayed completion.
   In this case, The Court held that as per the agreement, if the builder abandons the whole or part of the scheme, the builder’s liability is limited only to refund of the Amount paid by the allottee without interest or compensation. On the other hand, if the allottee has delayed in paying instalments, he is liable to pay 20% interest and all amount due. This agreement is inequitable. As relief, the builders have to pay interest on the deposited amount at par with the bank loan interest.

3. Veena Khanna Vs Ansal Properties & Industries Ltd, NCDRC, 2007, CPJ 185
   The National Commission overturned a State Commission order. The National Commission observed that a refund of money with interest at the bank rate does not imply that the complainant has been adequately compensated for the builder’s delay in completing the flat and failing to deliver possession of the flat. It was noted that due to the delays in construction and decision-making, it is practically impossible for a consumer to purchase a flat at market price.
   It was held that the State Commission had a duty to direct the builder to deliver possession of the same flat or a flat of comparable size to the consumer, with compensation for the delay in delivery. In any case, adequate compensation should have been provided so that the complainant could purchase a new flat of the same size at the current market rate. The payment of interest alone is insufficient compensation.

4. V.N. Shrikhande v. Anita Sena Fernandes [SC/0868/2010]
   It was determined that in cases of medical negligence, there is no straitjacket formula to determine when the consumer’s cause of action arose. In the face of such agony and pain, the respondent has been unable to provide a clear explanation for why she has not communicated with her doctor for the past 9 years. The respondent’s genuine claim for compensation is undermined by her long silence, and the Discovery Rule cannot be used to record a finding that the cause of action accrued to her in November 2002. As a result, the contested order was reversed, and the respondent’s complaint was dismissed. The appeal is allowed, and the parties must bear their own costs.

5. Sehgal School of Competition v. Dalbir Singh, on 10 December 2009
   The district forum directed the petitioner to refund half of the fees to Dalbir Singh to the tune of Rs. 18, 734. However, no compensation was made for mental agony, cost of litigation, and harassment which caused him to approach the district forum.
   The state commission held that “We have already taken a view which has been upheld by the National Commission and the same view was also taken by the Supreme court that no institute or coaching centre shall charge lump sum fees for the whole duration or should refund the fees if service is deficient in the quality or coaching etc. or for which period the student does not attend coaching as any clause saying that fees once paid shall not be refunded are unconscionable and unfair and therefore not enforceable.”
   The district forum also determined that the petitioner’s appeal lacked merit and dismissed it. Also, because respondent did not request higher compensation, no order was issued.

6. Poonam Verma vs Ashwin Patel & Ors on 10 May 1996
   The National Consumer Forum ruled that the doctor was negligent in giving Pramod Verma strong antibiotics for Viral Fever and then for Typhoid Fever without first confirming the diagnosis with a blood test or a urine examination. The Court relied on provisions of the Indian Medical Council Act of 1956 and the Maharashtra Medical Council Act, which state that a person cannot practise medicine in any state unless he has the necessary qualifications and is registered as a Medical Practitioner. Ayurveda, Unani, Homeopathy, and the Biochemic System of Medicine are not included in the definition of medical practitioner.
   The Supreme Court ruled in Poonam Verma vs Ashwin Patel that anyone who does not know a particular system of medicine but practises in that system is guilty of medical negligence. This is part of comprehending how the definition of “medical negligence” is argued today.

7. Indian Medical Association vs V.P. Shantha & Ors on 13 November 1995
   A three-Judge Bench of Supreme Court held that service rendered to a patient by a medical practitioner 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 Consumer Protection Act, 1986. Deficiency in service has to be judged by applying the test of reasonable skill and care which is applicable in action for damages for negligence.

8. Karnataka Power Transmission Corporation v. Ashok Iron Works Private Limited, on 9 February 2009
   The judgement was given in the favour of Ashok Iron Works Private Limited against Karnataka Power Transmission Corporation. The financial claim made by the Company for the delay in supply of electricity by KPTC was reinforced by judgement based on following interpretations by judges on specific words consumer, defect in service.
   In this case, it was held that private corporations are now classified as ‘persons’ and the electricity supply is a service under the Act. Complaints about defects can then be referred to as a customer redressal forum for this kind of service. But the effect of the provision on the act on future court decisions also needs to be seen.