Landmark cases for consumer protection act
1. Dr. M. Kochar vs Ispita Seal on 12 December, 2017
National Commission says “No Cure/No Success is not Medical Negligence”
2. Pratibha Pratisthan&Ors. v. Manager, Canara Bank &Ors.
Trust cannot Lodge a Complaint under the Consumer Protection Act
3. National Insurance Co.Ltd vs Hindustan Safety Glass Works Ltd on 7 April, 2017
SC: Limitation Provision in Consumer Protection Act cannot be strictly construed to disadvantage of Consumer
4. Om Prakash vs Reliance General Insuarance on 4 October, 2017
SC: Insurance Company cannot Reject Claims on Technical Grounds
- Indian Medical Association vs V.P. Shantha &Ors on 13 November 1995
In this case, the Hon’ble Supreme Court through this case included the medical profession and medical negligence, within the scope of the Consumer Protection Act. Consequently, empowering the aggrieved (due to medical negligence) to sue for damages for deficiency in services by a medical professional or medical institution, in a Civil Court.
- Gurshinder Singh vs Sriram General Insurance Co. Ltd. on 24 January 2020
In this case, the Hon’ble Supreme Court while reiterating the verdict passed in the case of Om Prakash v. Reliance General Insurance and Anr. Civil Appeal No. 15611/2017held that insurance claims should not be declined on technical grounds if the reason behind it is satisfactorily explained and proved. It was further opined by the Court that if the insurance claim is declined by the Insurer because of untimely intimation of occurrence of theft/robbery, it would be considered as a technical ground of rejection and the same would be unjust and not fair if the respective claim in question has already been verified. Hence, it was held by the Court that, mere delay in intimating the insurance company about the theft must not act as a valid ground to decline or repudiate the insurance claim, which has already been proved to be genuine.
- New India Assurance Co. Ltd vs M/S. Abhilash Jewellery on 22 January 2009
The complainant/respondent, who had taken a jeweller’s block policy, lodged a claim with the opposite party insurer for loss of gold ornaments. The insurer repudiated the claim on the ground that the loss occurred when the gold was in the custody of an apprentice, who was not an employee (because the policy stipulated that for indemnification of the loss, the property insured had to be “in the custody of the insured, his partner or his employee”). The National Commission allowed the complaint holding that an apprentice was an ’employee’ since section 2(6) of the Kerala Shops and Commercial Establishments Act (as well as some other statutes) defined an ’employee’ to include an ‘apprentice’. The Supreme Court, however, held that the word ’employee’ in the contract of insurance mentioned had to be given the meaning in common parlance. The definition in the local Act, including an ‘apprentice’ in the category of ’employee’, was only a ‘legal fiction’, which is a concept in law and could not be applied to an insurance contract. The Court, therefore, allowed the appeal.
- Karnataka Power … vs Ashok Iron Works Pvt. Ltd on 9 February 2009
The appellant corporation contended that the complaint filed by the respondent was not maintainable as (i) a company is not a ‘person’ under section 2(1)(m) of the Consumer Protection Act, 1986 (CPA); (ii) the complainant is not a ‘consumer’ within section 2(1)(d) of the said Act since it purchased electricity for commercial production, and (iii) disputes relating to sale and supply of electricity were not covered under ‘service’ under section 2(1)(o) of the CPA. The Apex Court rejected the appellant’s contention that a company was excluded from the definition of ‘person’. In this, the Court relied upon the English Court decision in Dilworth v Commissioner of Stamps [(1899) AC 99] and its own in Reserve Bank of India v Peerless General Finance and Investment Company Limited. and Others [(1987) 1 SCC 424] and reiterated that the use of the word ‘includes’ in a statute often showed the intention of the Legislature to give an extensive and enlarged meaning to such expressions though sometimes, the context might suggest that ‘includes’ was designed to mean ‘means.’ The setting, context and object of enactment might provide sufficient guidance for interpretation. The Court also referred to section 3(42) of General Clauses Act which defines a ‘person’ to include a company, etc., and went on to observe that out of the four categories mentioned in section 2(1)(m) of the CPA, the third i.e., co-operative society was corporate, which showed that the Legislature intended to include bodies corporate as well as incorporate.
Thus, the definition of ‘person’ was inclusive and not exhaustive. When so construed, ‘any person’ mentioned in the definition of ‘consumer’ in section 2(1)(d) would include a company. On the appellant’s second contention, the Court held that the amendment to the CPA effective from 15 March 2003, excluding services availed of for commercial purposes, was not applicable to this case since the controversy related to a prior period. In respect of the appellant’s third contention, the Court held that supply of electricity by the corporation to a consumer was not a sale of goods within section 2(1)(d) of the CPA. For this, the Court relied upon its decision in Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector and ETIO and Others [(2007) 5 SCC 447], in which the Court had held that ‘supply’ of electricity did not mean ‘sale’ thereof and a case of a supply of electricity was covered under section 2(1)(d)(ii) (i.e., hiring or availing of any service) as ‘service’ under section 2(1)(o) meant service of any description including the provision of facilities in connection with the supply of electrical or other energy. Therefore, a case of deficiency in service would fall under section 2(1)(g). The Court rejected the appellant’s contention that ‘service’ in section 2(1)(o) was limited to providing facilities in connection with electricity.
- Hdfc Bank vs Balwinder Singh on 20 April 2015
The complaint was of the bank, or its loan recovery agent, employing musclemen to take forcible repossession of the hypothecated vehicle and thus causing physical harassment and mental trauma to the complainant. The District Forum allowed the complaint and directed the bank to pay compensation of Rs. 4 lakh for repossessing the vehicle in this manner and reselling it to a third party. The State Commission confirmed the order in appeal. Dealing with the bank’s revision petition, the National Commission expressed shock that the bank had hired musclemen directly or through its recovery agents to recover the loan/repossess the vehicle. The Commission also referred to the State Commission’s order, which had observed that the alleged letter produced by the bank purporting to the complainant voluntarily handing over possession of the vehicle was unreliable and that no notice was given to the complainant at the stages of repossession and sale of the vehicle. In dismissing the petition, the Commission relied upon its judgment in Citicorp Maruti Finance Limited v S. Vijayalaxmi [III (2007) CPJ 161 (NC)] where it had strongly deprecated such practices. The Commission dismissed the petition and awardedRs.25,000/- as exemplary costs in this case.
- Malka Tarannum vs Dr C.P. Gupta on 20 April 2009
The District Forum allowed the complaint of the complainant that there was negligence in applying (the first) plaster cast on the complainant’s daughter’s fractured hand, which led to the need to apply the plaster for the second time. In the appeal, the State Commission dismissed the complaint and also held that the complainant was not a consumer since he was not charged any fee for the treatment. In revision, the National Commission held that application of the plaster for the second time did not imply medical negligence on the first occasion since the application of POP slab (also known as temporary cast) was a normal procedure adopted in the first instance whenever there was swelling at the site of the injury. Relying on the Supreme Court decision in Jacob Mathew v State of Punjab and Another [(2005) 6 SCC 1], the Commission observed that the doctor who had applied the plaster in the first instance was a senior orthopaedic specialist with considerable experience and the complainant could not dispute his professional decision on the basis of mere allegations, without any expert evidence. The Commission also rejected the complainant’s husband’s contention that he was a consumer since he was covered by the Supreme Court decision in Laxman ThamappaKotgiri v G.M., Central Railway and Others and that receiving free medical treatment was part of the terms and conditions of his service. It held that the complainant took no such plea before the Fora below and no evidence was produced.
- Sri Tuhin Kundu vs M/S Kothari Medical Centre on 15 July, 2013
The complainant alleged that her deceased son, aged 20 years and otherwise healthy, died as a result of medical negligence on the part of the appellant doctor (original opposite party) who administered wrong treatment. The State Commission awarded to the complainant a compensation of Rs. 5 lakh with interest and costs. In the appeal, the National Commission, on consideration of the material on record, came to the conclusion that the two medical prescriptions, which the doctor sought to deny, could have been written only by him. It also observed that though, in the appeal, the doctor admitted for the first time to having treated the patient; he did not produce any prescription on record. More importantly, the two prescriptions available on record did not mention any of the patient’s complaints/symptoms, the doctor’s clinical observations on examining the patient or his diagnosis of the ailment. Even the ordinary vital parameters like temperature, blood pressure, pulse rate, etc., were not noted. The Commission observed that the Medical Council of India or the State Medical Council, with one of which the doctor had to be registered to practice modern (allopathic) medicine, required, through their respective codes of ethics/guidelines/ regulations, to make some minimal record even for outpatients.
Such a record would ordinarily include a summary of the history of illness and current complaints/symptoms of the patient and clinical observations of the doctor. If the doctor considered none of the above as essential, he would need to at least record a provisional diagnosis of the patient’s ailment in the prescription while advising further diagnostic test(s) or treatment (medicines/injections). This was one of the primary duties of disclosure owed by a physician of ordinary skills to his patient. The Commission held that in line with the Apex Court’s decision in Samira Kohli v Dr Prabha Manchanda [I (2008) CPJ 56 (SC)] regarding the need for valid prior consent of the patient for his treatment by a doctor and the doctor’s corresponding duty of disclosure, it was essential for the doctor to write a prescription with such necessary details and failure to do so would constitute medical negligence. The Commission further observed that if a patient found that the doctor’s treatment did not help ease his felt problem and wanted to consult another, a prescription with such details would be necessary. On the other hand, a prescription meeting these basic requirements would also assist a doctor in demonstrating that he had treated his patient with due care if charged with a wrong/false allegation of negligence by the patient. While returning a finding of medical negligence against the doctor, the Commission found that the material on record case was insufficient to attribute the patient’s death directly and wholly to the doctor’s negligence. Accordingly, it scaled down the compensation to Rs. 2.5 lakh along with interest.
- Life Insurance Corporation vs Gowramma on 11 May 2009
The petitioner insurer repudiated the life insurance policy in the name of the respondent’s late husband (insured) on the ground of deliberate misstatements and withholding of correct facts regarding the health of the insured. The lower Fora rejected the various contentions of the insurer and allowed the complaint. Before the National Commission, the insurer relied upon the Commission’s decision in L.I.C. of India and Another v Parveen Dhingra [II (2003) CPJ 70 (NC)] and contended that revival of the policy constituted a new contract between the parties and the limitation period of two years under section 45 of the Life Insurance Act, 1938 had to be counted from the date of revival. Therefore, the misstatements and concealment of facts could be made a ground for repudiation even though the same were not made aground at the time of the initial policy. The Commission referred to the Supreme Court decision in Mithoolal Nayak v Life Insurance Corporation of India [AIR 1962 SC 814] where the Court had rejected a similar contention that the revival of the policy constituted a new contract between the parties and held that section 45 was clear that the period of two years was to be reckoned from the date on which the policy was originally effected. The Commission observed that the decision of the Supreme Court had to be preferred and followed.