Supreme Court Half Yearly Digest 2022 (Jan - Jun) CONSUMER LAW With Parallel Citations

Consumer Protection Act, 1986 - Appeal against NCDRC order refusing to condone delay of 67 days in filing the revision- Allowed and delay condoned- Delay in filing the revision was not huge, that should not have been condoned- The question of limitation is not to be examined with a view to decline the condonation, but to do substantial justice. Manager, Indusind Bank v. Sanjay Ghosh, 2022 LiveLaw (SC) 550

Consumer Protection Act, 1986 - Appeal by Developer against NCDRC order directing refund and compensation to Consumer for its failure to deliver possession of the apartment within the time stipulated as per the Apartment Buyers Agreement - Dismissed - Commission is correct in its approach in holding that the clauses of the agreement are one-sided and that the Consumer is not bound to accept the possession of the apartment and can seek refund of the amount deposited by her with interest - Commission has correctly exercised its power and jurisdiction in passing the directions for refund of the amount with interest. Experion Developers Pvt. Ltd. v. Sushma Ashok Shiroor, 2022 LiveLaw (SC) 352 : AIR 2022 SC 1824

Consumer Protection Act, 1986 - Consumer complaint alleging vehicle defect - The limitation will run from the day the defect surfaces in a case. (Para 7) Hyundai Motor India Ltd. v. Shailendra Bhatnagar, 2022 LiveLaw (SC) 399 : 2022 (6) SCALE 587

Consumer Protection Act, 1986 - If the NCDRC is of the opinion that the Surveyor was an unnecessary party or the pleadings are contradictory, it should have struck down the said party. The striking of surveyor from the array of parties would not make the complaint disjoined, as it was duty of the NCDRC to strike of an unnecessary party. (Para 3) Brahmaputra Biochem Pvt. Ltd. v. New India Assurance Company, 2022 LiveLaw (SC) 211

Consumer Protection Act, 1986 - Real Estate (Regulation and Development) Act, 2016 - Consumer Protection Act and the RERA Act neither exclude nor contradict each other - They are concurrent remedies operating independently and without primacy. (Para 14.1) Experion Developers Pvt. Ltd. v. Sushma Ashok Shiroor, 2022 LiveLaw (SC) 352 : AIR 2022 SC 1824

Consumer Protection Act, 1986 - The Act of 1986 is not a general law but a special law that has been enacted by Parliament specifically to protect the interest of consumers. [Overruled General Manager, Telecom v. M Krishnan, (2009) 8 SCC 481] (Para 18) Indian Oil Corporation Ltd. v. Shree Ganesh Petroleum Rajgurunagar, 2022 LiveLaw (SC) 121 : (2022) 4 SCC 463

Consumer Protection Act, 1986 - The requirement of leading detailed evidence could not be a ground to shut the doors of any forum created under the Act like the Consumer Protection Act. The anvil on which entertainability of a complaint by a forum under the Act is to be determined, is whether the questions, though complicated they may be, are capable of being determined by summary enquiry. (Para 11) Sunil Kumar Maity v. State Bank of India, 2022 LiveLaw (SC) 77 : AIR 2022 SC 577

Consumer Protection Act, 1986; Section 2(1)(d) - Legislative history discussed - The legislative intent is to keep the commercial transactions out of the purview of the Act and at the same time, to give benefit of the Act to a person who enters into such commercial transactions, when he uses such goods or avails such services exclusively for the purposes of earning his livelihood by means of self ­employment. (Para 21 - 46) Shrikant G. Mantri v. Punjab National Bank, 2022 LiveLaw (SC) 197 : (2022) 5 SCC 42

Consumer Protection Act, 1986; Section 2(1)(d) - The 'business to business' disputes cannot be construed as consumer disputes, thereby defeating the very purpose of providing speedy and simple redressal to consumer disputes. (Para 47) Shrikant G. Mantri v. Punjab National Bank, 2022 LiveLaw (SC) 197 : (2022) 5 SCC 42

Consumer Protection Act, 1986; Section 2(1)(d) - The question, as to whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, "commercial purpose" is understood to include manufacturing/industrial activity or business ­to ­business transactions between commercial entities; that the purchase of the good or service should have a close and direct nexus with a profit­ generating activity; that the identity of the person making the purchase or the value of the transaction is not conclusive for determining the question as to whether it is for a commercial purpose or not. What is relevant is the dominant intention or dominant purpose for the transaction and as to whether the same was to facilitate some kind of profit generation for the purchaser and/or their beneficiary. It has further been held that if the dominant purpose behind purchasing the good or service was for the personal use and the consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, then the question of whether such a purchase was for the purpose of "generating livelihood by means of self -employment" need not be looked into. (Para 42) Shrikant G. Mantri v. Punjab National Bank, 2022 LiveLaw (SC) 197 : (2022) 5 SCC 42

Consumer Protection Act, 1986; Section 2(1)(d) - When a person avails a service for a commercial purpose, to come within the meaning of 'consumer' as defined in the said Act, he will have to establish that the services were availed exclusively for the purposes of earning his livelihood by means of self -employment. (Para 45) Shrikant G. Mantri v. Punjab National Bank, 2022 LiveLaw (SC) 197 : (2022) 5 SCC 42

Consumer Protection Act, 1986; Section 2(1)(g) - Failure to obtain an occupancy certificate or abide by contractual obligations amounts to a deficiency in service - Consumers 'consumers' has right to pray for compensation as a recompense for the consequent liability (such as payment of higher taxes and water charges by the owners) arising from the lack of an occupancy certificate. (Para 21-22) Samruddhi Co-operative Society v. Mumbai Mahalaxmi Construction, 2022 LiveLaw (SC) 36 : AIR 2022 SC 428 : (2022) 4 SCC 103

Consumer Protection Act, 1986; Section 2(g) - Insurance - Deficiency in Service - When the insured had produced the photocopy of certificate of registration and the registration particulars as provided by the RTO, solely on the ground that the original certificate of registration (which has been stolen) is not produced, non settlement of claim can be said to be deficiency in service. (Para 4) Gurmel Singh v. National Insurance Co. Ltd., 2022 LiveLaw (SC) 506 : AIR 2022 SC 2486

Consumer Protection Act, 1986; Section 2(g), 14 - The power to direct refund of the amount and to compensate a consumer for the deficiency in not delivering the apartment as per the terms of Agreement is within the jurisdiction of the Consumer Courts - A consumer can pray for refund of the money with interest and compensation. The consumer could also ask for possession of the apartment with compensation. The consumer can also make a prayer for both in the alternative. If a consumer prays for refund of the amount, without an alternative prayer, the Commission will recognize such a right and grant it, of course subject to the merits of the case. If a consumer seeks alternative reliefs, the Commission will consider the matter in the facts and circumstances of the case and will pass appropriate orders as justice demands. (Para 15-16) Experion Developers Pvt. Ltd. v. Sushma Ashok Shiroor, 2022 LiveLaw (SC) 352 : AIR 2022 SC 1824

Consumer Protection Act, 1986; Section 2(o) - Indian Telegraph Act, 1885; Section 7B - Existence of an arbitral remedy under the Indian Telegraph Act, 1885, will not oust the jurisdiction of the consumer forum - It would be open to a consumer to opt for the remedy of arbitration, but there is no compulsion in law to do so and it would be open to a consumer to seek recourse to the remedies which are provided under the Act of 1986, now replaced by the Act of 2019. (Para 16, 20) Indian Oil Corporation Ltd. v. Shree Ganesh Petroleum Rajgurunagar, , 2022 LiveLaw (SC) 121 : (2022) 4 SCC 463

Consumer Protection Act, 1986; Section 2(o) - Scope of expression 'service' discussed - a service of every description would fall within the ambit of the statutory provision. (Para 9) Indian Oil Corporation Ltd. v. Shree Ganesh Petroleum Rajgurunagar, 2022 LiveLaw (SC) 121 : (2022) 4 SCC 463

Consumer Protection Act, 1986; Section 14(1) - If the reliefs granted in a consumer complaint fits any of the statutory provision contained in sub clause (1) of Section 14 of the Act, it would be well within the power and jurisdiction of the Forum to pass directions irrespective of the fact as to whether specifically certain reliefs have been claimed or not, provided that facts make out foundations for granting such reliefs. In any event, it is within the jurisdiction of the said forum to mould the reliefs claimed to do effective justice, provided the relief comes within the stipulation of Section 14(1) of the Act. (Para 15) Hyundai Motor India Ltd. v. Shailendra Bhatnagar, 2022 LiveLaw (SC) 399 : 2022 (6) SCALE 587

Consumer Protection Act, 1986; Section 14(1) - The failure to provide an airbag system which would meet the safety standards as perceived by a car­buyer of reasonable prudence should be subject to punitive damages which can have deterrent effect. And in computing such punitive damages, the capacity of the manufacturing enterprise should also be a factor - Such damages can be awarded in the event the defect is found to have the potential to cause serious injury or major loss to the consumer, particularly in respect of safety features of a vehicle. (Para 13) Hyundai Motor India Ltd. v. Shailendra Bhatnagar, 2022 LiveLaw (SC) 399 : 2022 (6) SCALE 587

Consumer Protection Act, 1986; Section 21(b) - Revisional jurisdiction of the National Commission is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. (Para 9) Sunil Kumar Maity v. State Bank of India, 2022 LiveLaw (SC) 77 : AIR 2022 SC 577

Consumer Protection Act, 2019 - Section 2(42) - Consumer Protection Act, 1986 - Section 2(o) - The insertion of the expression 'telecom services' in the definition which is contained in Section 2(42) of the Act of 2019 cannot, for the reasons which we have indicated be construed to mean that telecom services were excluded from the jurisdiction of the consumer forum under the Act of 1986 - Section 2(o) of the Act of 1986 wide enough to comprehend services of every description including telecom services. (Para 14, 20) Indian Oil Corporation Ltd. v. Shree Ganesh Petroleum Rajgurunagar, 2022 LiveLaw (SC) 121 : (2022) 4 SCC 463

Consumer Protection Act, 2019; Section 58 (1)(a)(iii & iv) - Writ petition under Article 227 maintainable against the order passed by the National Commission in an appeal under Section 58 (1)(a)(iii) or Section 58(1)(a) (iv) of the 2019 Act - While granting any interim stay/relief in a writ petition under Article 227 of the Constitution against an order passed by the National Commission, the same shall always be subject to the rigour of the powers to be exercised under Article 227 of the Constitution of India. (Para 11-14.1) Ibrat Faizan v. Omaxe Buildhome Pvt. Ltd; 2022 LiveLaw (SC) 481 : AIR 2022 SC 2363

Consumer Protection Act, 2019 - Section 67 Proviso - Onerous condition of payment of 50% of the amount awarded will not be applicable to the complaints filed prior to the commencement of the 2019 Act. (Para 34) ECGC Ltd. v. Mokul Shriram EPC JV, 2022 LiveLaw (SC) 168 : (2022) 6 SCC 704

Insurance Law - The vehicle of the complainant (the insured) which was insured with Insurance Company was robbed. The next day, an FIR was registered by him. Accused were arrested and challan filed. Thereafter, the complainant lodged the insurance claim. The same was repudiated on the ground that there was a delay in intimating the Insurance Company about the occurrence of the theft. Though District Forum and State Consumer Commission allowed the complaint - NCDRC dismissed it by allowing insurer's revision petition. Allowing the appeal, the Supreme Court set aside the NCDRC order and upheld the State Commission order. Jaina Construction Company v. Oriental Insurance Company Ltd., 2022 LiveLaw (SC) 154 : (2022) 4 SCC 527

Mediation - All States are mandated to set up the mediation cells - A direction is made for the e-filing system to be made operational. In Re: Inaction Of The Governments In Appointing President And Members/staff Of Districts And State Consumer Disputes Redressal Commission And Inadequate Infrastructure Across India v. Union of India, 2022 LiveLaw (SC) 371

Mediation - Mediation is an important, if not at times a better method of resolution of disputes. In Re: Inaction Of The Governments In Appointing President And Members/staff Of Districts And State Consumer Disputes Redressal Commission And Inadequate Infrastructure Across India v. Union of India, 2022 LiveLaw (SC) 371