Vidhi Agrawal
The National Consumer Disputes Redressal Commission (NCDRC) of India is a quasi-judicial commission made in 1988 under the 1986 Consumer Protection Act. Its main office is in New Delhi. The Commission is headed by a serving or former judge of the Supreme Court of India. Justice R K Agrawal, a retired judge of the Supreme Court of India, is currently heading the Commission. NCDRC has been protecting and justifying the rights of Consumers against the manufacturers or sellers. Even in the pandemic year of 2020, NCDRC continued to impart justice. What follows are insights on the NCDRC’s landmark judgements of 2020.
“Informed Consent Cum Undertaking” Form Availed by Hospitals will lead to Unfair Trade Practice
Vinod Khanna, a 65-year-old patient with some abdominal pain and associated complications rushed to a private hospital in Fortis Hospital’s abdominal department, New Delhi. Afterward, owing to financial hardships, he approached opposition party 2, Dr. Anil Varshney at RG Stone Urology and Laparoscopy Hospital for further care (opposing party 3). The doctor prescribed and recommended the patient to undergo surgery, which was performed on 13 January 2010.
The patient later contacted the hospital to complain about the problems he experienced during his surgery. Upon examination, the doctor told him that a complication had arisen and advised him to do natural healing. The Plaintiff then had to visit Indraprastha Apollo Hospital, where he was admitted and received treatment but was not fully cured, and incurred expense for the treatment. He eventually returned to Fortis Hospital for treatment and visited frequently. According to the claimant, due to OP-1 and OP-2, he sustained negligent treatment, injuries, and complications and moved before the Consumer Commission to claim reimbursement of Rs 1,88,37,602.
However, the respondents withstood the accusation and refuted the charges. As the instant case was filed in 2018, after 8 years of the cause of action occurring in 2010, the OPs admitted the preliminary objection of limitation. They also reported that the plaintiff had previous tuberculosis-related hernia and appendix surgery and developed immune deficiency syndrome.
Order
The Commission noticed that the patient was afflicted from HIV and skin cancer and was well conscious of his immune-compromised status, even though the patient was handled with all due care and fair ability by the doctor.
Nevertheless, in its effort to manipulate the hospital and influence emotionally for out of court settlement, the Complainant with malicious intent posted a report against the hospital in the ‘Hindustan Times’ to influence the court. The Commission also observed that it is clear that the complainant’s accusations were entirely afterthought based on assumptions, and perverse beliefs.
In the instant situation, he is well conscious of his immune-compromised status, the Complainant/patient suffered from HIV and skin cancer. Given such positive HIV status, the (OP-2) worked with all due care and rational skills on the patient.
However, the Commission could not overlook the anomaly of the “informed consent” in the case, which needed prompt and proper corrections.
The National Consumer Disputes Redressal Commission had held that it is unreasonable and misleading to use a pre-printed and predetermined ‘informed consent cum undertaking form’ by hospitals and would result in unfair trade practice within the scope of Section 2(1)(r) of the Consumer Protection Act, 1986.
The Commission noted that in this case, the hospital availed of a pre-printed and set ‘informed consent cum undertaking’ form, with blank spaces for bounded and selected handwritten entries and signatures. The form’s main body is pre-printed and fixed. After filling up the blank spaces for the small number of handwritten entries and obtaining the signatures, it can fit into any practice, any physician, and any patient.
The Commission found that, on the part of the hospital, this was managerial arbitrariness and one-sided heavy-handedness, and noted that this was unjust and misleading.
The Commission also levied on the hospital a cost of Rs. 10 lakh for this reason.
It was fought before HON’BLE DR. S.M. KANTIKAR PRESIDING MEMBER and HON’BLE MR. DINESH SINGH, MEMBER. The case was pronounced on 6th July 2020.
M/S Pyaridevi Chabiraj Steels Pvt Ltd v National Insurance Company Ltd & Ors
In an essential order, the NCDRC ruled that the value of the “paid” goods/services as a factor alone must be taken into account in assessing the pecuniary authority of the consumer forum, not the value of the “purchased” goods/services.
In M/S Pyaridevi Chabiraj Steels Pvt Ltd v National Insurance Company Ltd & Ors, while examining a consumer complaint filed on behalf of a Kolkata-based factory against its insurer, National Insurance Company, the order was passed by a bench of Justice R K Agrawal (president) and S M Kantikar (member). The complainant argued that the insurance firm had unfairly disavowed its ₹280 million insurance claim, which was purchased by paying a premium of ₹443,562.
The NCDRC found that the amount of the consideration paid in the case was “less than” 100 million (NCDRC’s pecuniary authority pursuant to section 58(1)(a)(i) of the Consumer Protection Act, 2019) and that the grievance is not sustainable before the commission. The NCDRC had the authority to lodge complaints under section 21(a)(i) of the Consumer Protection Act, 1986, if the value of the products or services and compensation received exceeded ₹10 million. However, under the new legislation, the authority of the NCDRC is to file lawsuits when the ‘value of the products or services charged’ reaches 100 million as consideration.
This move, the NCDRC noted, was designed to ensure that the relevant consumer platforms are approached by customers. It noted that the NCDRC would have jurisdiction in the issue if the case were regulated by the Consumer Protection Act, 1986 because pecuniary jurisdiction was decided by taking the “value of the goods or services and compensation,” indicating the value of the goods or services, and also by adding compensation to infer whether the NCDRC had jurisdiction or not.
The NCDRC noted that the Parliament was aware of this fact when enacting the 2019 Act and that only the value of the consideration charged should be taken into account when evaluating the pecuniary jurisdiction and not the value of the goods or service should be taken into account when determining the pecuniary jurisdiction, to ensure that consumers should address the relevant consumer disputes redressal commission, whether it is a district, state or nation.
The NCDRC concluded that the case was not maintainable because the complainant’s consideration was just ₹443,562, which is not over ₹100 million, and thus the NCDRC had no authority to hear the new consumer complaint. The NCDRC concluded that the words “and compensation” were definitely replaced by the word “paid” to discourage customers from contacting the NCDRC directly.
NCDRC: Riding high-end motorcycles without instruction can be negligence, but not intentional self-harm
In a significant order, the National Consumer Disputes Redressal Commission (NCDRC) held on Friday, 09 October, that deliberate self-injury cannot be judged in a case in which an individual is riding a high-end motorcycle without the requisite orientation.
While hearing a consumer complaint filed against New India Assurance Company Ltd by Mala Sahni Seth, the wife of late Mr. Sunil Seth, the co-founder and senior partner of Seth Dua & Association, the resolution was adopted by the bench of Justice V. K. Jain.
NCDRC noted that without taking into account the path that the vehicle owner wishes the driver of the vehicle to take if a person driving a high-end motorcycle can be said to be negligent, but it can never be said that his purpose behind driving a motorcycle was to cause injury to himself.
For the period from 17.09.2016 to 16.09.2017, Mr. Sunil Seth received a personal accident insurance policy from the New India Assurance Company Ltd. period from 17.09.2016 to 16.09.2017, in which an amount of Rs. 58,75000 was payable if the insurer died in an accident
On 05.02.2017, Mr. Sunil Seth suffered a dangerous accident while driving a motorcycle near Manesar in Haryana.
The claimant submitted a claim concerning the above-mentioned policy to the insurer, who named M/s Somen Media as the surveyor to determine the damage.
The surveyor deduced that Mr. Sunil Seth’s death probably took place in a road accident. Accordingly, the argument can be assessed as per the terms and conditions of the policy and its coverage.
M/s Eagle Rider provided with a high-end motorcycle. In terms of the employment settlement between the said company and Mr. Neeraj Sethi, Neeraj Sethi was employed on a hiring basis.
Without the authorization of M/s Eagle Rider from the original hirer, Neeraj Sethi, Mr. Sunil Sethi took the automobile.
The rider was expected to undergo an orientation programme to drive the said motorcycle, which Mr. Sunil Seth had not undergone.
Mala Sahni Seth’s claim was rejected by a consultation letter from the insurer dated 20.07.2017 pursuant to Exception No. 5(a) of the policy, which states that, under this policy, the firm is not responsible for the payment of compensation in respect of the death, injury or disability of the self-injured insured.
The Letter claimed that Mr. Sunil Seth was attempting to transfer the said high-end motorcycle without any experience and expertise. In this process, he lost control and suffered injuries.
The scheme, extended by the company in the event of an accident, provides for compensation. The accident means that there are no plans for any sudden incident. It was stated in the letter that Mr. Sunil Seth was well aware of the consequences and even then, without the permission of M/s Eagle Rider, he had taken the vehicle from an actual hirer, Mr. Neeraj Sethi.
Finally, the letter claimed that, in the present case, the deceased was well aware of the consequences of the mismanagement of such a type of motorcycle. To handle such a type of motorcycle, the departed had no fundamental understanding. The deceased caused the incident by taking the said vehicle without permission. The series of events does not indicate accidental accidents that are required under the policy for payment of the insured sum.
The Commission noted that if an individual driving a vehicle experiences an accident, it would be difficult to say solely based on his driving without a license that his purpose was to cause harm to himself.
The status of a person who holds a valid driving license but does not take the training would be much better than the position without the appropriate licence of a person driving a car. The Commission, therefore, ruled that the present case was not protected by exception No. 5(a) of the regulation.
Besides, about the following instructions, the complaint was deleted:
Along with compensation for that amount in the form of simple interest @ 8 percent p.a. The other party shall pay the claimant an amount of Rs. 58,75,000/- with effect from six months from the date of lodging of the claim to the payment date.
The other party shall pay the total amount of fifty thousand rupees to the claimant as to the cost of the legal action.
From today onwards, payment shall be made within three months in accordance with this order.
Big Bazaar (Future Retail Ltd.) Carry Bag Case
Big Bazaar has been ordered by the National Consumer Disputes Redressal Commission (NCDRC) to cease its unreasonable market practice of unilaterally enforcing additional costs of carrying bags on the consumer at the time of payment. Withdrawing the revision petition lodged by it, the Commission noted that a consumer has the right to know that there will be an increased expense for carrying bags and also to pay for them. The question before the NCDRC was if it can be claimed that deficiency and unfair trade practice was the charge of extra costs (Rs. 18/- in this case) for carrying bag(s) to hold the items purchased by the claimant.
Big Bazaar was opposed by the District Forum and the State Commission. The Commission noted that the normal practice in retail outlets is to provide carrying bags without additional costs to allow convenience to carry the goods purchased. Thus, the President, Dinesh Singh, observed:
After the customer has exercised his right to patronize his retail store and after he has made his choice of products for purchase, the notification or details shouldn’t be made at the time of payment. Such warning or details not only creates discomfort and abuse to the customer at the time of payment and imposes on him extra expenses, but also affects his unlimited right to make an informed decision to patronize or not patronize a specific outlet at the initial stage itself and before making his choice of items for purchase.
The case was decided on 22nd December 2020.
All the judgements hit on the point that NCDRC efficiently work to fulfil the prime goal of the Consumer Protection Act and that is to keep the Consumers at the atomic level. Consumers are the core of our economy and due to their vulnerability, their exploitation becomes easy. However the CPA acts as a guardian and protector and NCDRC, one of its agent, becomes the path to justice.