Compensation to a house buyer for not giving posseesion as promised in the contract

Chief Administrator HUDA Vs Shakuntla Devi in the Supreme Court of India on 8 December 2016

Compensation
Consumer Protection Act, 1986
Finding of the District Forum:
Charan Singh v. Healing Touch Hospital and Others, reported in (2000) 7 SCC 668
Ghaziabad Development Authority v. Balbir Singh, reported in (2004) 4 SCC 65
Award of interest at the rate of 18 % on the amount deposited on various time till the actual possession of the plot would have been sufficient to compensate for the loss suffered by him due to the delay in handing over the possession of the plot. The compensation of Rs. 15 lakhs awarded by the State Commission is excessive.
______________________________________

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
[T.S. THAKUR, CJI] [DR. D. Y. CHANDRACHUD] [L. NAGESWARA RAO] JJ.
December 8, 2016
CIVIL APPEAL No. 7335 of 2008

CHIEF ADMINISTRATOR, H.U.D.A. & ANR. …. Appellant(s)
Versus
SHAKUNTLA DEVI ….Respondent(s)

J U D G M E N T

L. NAGESWARA RAO, J.
This Appeal is filed challenging the order dated 25.09.2007 of the National Consumer Disputes Redressal Commission, New Delhi (hereinafter referred to as ‘National Commission’) by which an order of the State Consumer Disputes Redressal Commission, Union Territory, Chandigarh (hereinafter referred to as ‘State Commission’) awarding compensation to the Respondent was confirmed.

2. The Respondent was allotted Plot No. 40, measuring 40 marlas in Sector 8, Urban Estate, Karnal on 03.04.1987. As physical possession of the plot was not given to her by the Appellants, the Respondent filed Original Complaint No. 54 of 1997 before the State Commission. In the said complaint, the Respondent alleged that she had paid the full price of the plot including the enhancement fee as per the terms and conditions of the allotment letter. She averred that she was not given the possession of the plot in spite of repeated requests. The Respondent also pleaded in the complaint that the Appellants were required to complete the development work within 2 years from the date of the allotment letter and hand over the physical possession. She further stated that she wanted to construct a house and the delay in handing over physical possession of the plot resulted in additional expenditure for the building as the price of construction material increased manifold from 1988 to 1997. On the basis of the above averments, the Respondent sought for the following reliefs in Original Complaint No. 54 of 1997:
i. “That the opposite party be directed not to charge any extension fees for not constructing the plot within the stipulated period which could not be done because of non delivery of the physical possession of the plot.
ii. HUDA be directed not to charge interest at all on the amount because the HUDA had offered a paper possession in the year 1982 and had not handed over the physical /actual possession till date.
iii. HUDA be directed to deliver the physical possession immediately after completing development work as per the brochure and advertisement and after providing the community service such as schools, community centre, hospital etc. in the sector.
iv. The HUDA be directed to give compensation of 1.00 lac against harassment mental agony suffered due to the act and conduct of HUDA.
v. Directed to give cost to the complainant for Rs. 20,000/- against the expenditure incurred in filing this complaint and as well as for spending the amount for visiting the office of the last 8 years.
vi. The complainant be awarded interest at the rate of 18 % on the amount deposited on various time till the actual possession of the plot is given.
vii. The Respondent be directed to pay Rs. 5.00 lac escalation cost of the construction material.”

3. The Appellants filed a written statement in which it was stated that the Respondent was allotted the plot from the Government Discretionary Quota vide Allotment Letter No. 5049 dated 03.04.1987. The Appellants alleged that the Respondent did not seek delivery of possession prior to 16.07.1997. It was also stated in the written statement that an amount of Rs.28,000/- was still outstanding. It was further alleged that the Respondent was not interested in constructing a house and that no building plan was submitted for approval.

4. The State Commission by its order dated 21.12.1998 held that the Respondent has established deficiency of service by the Appellants as there was delay in handing over physical possession of the plot. The complaint was allowed and the Appellants were directed to deliver vacant physical possession of the plot, if not already done, to the Respondent within one month from the date of receipt of the order. There was a further direction to pay interest on the amount deposited by the Respondent at the rate of 12% with effect from 03.04.1989 and to pay a sum of Rs.2 lakhs as compensation on account of escalation in the cost of construction etc. The Appellants were also directed to pay Rs.20,000/- towards compensation for monetary loss and mental harassment suffered by the Respondent.

5. Aggrieved by the said order dated 21.12.1998 of the State Commission, the Appellants filed an appeal before the National Commission. The National Commission confined the dispute in First Appeal No. 154 of 1999 only to the award of compensation of Rs.2 lakhs relating to escalation in cost of construction. The other reliefs pertaining to payment of compensation towards monetary loss and mental harassment of Rs. 20,000/- and interest on the amount deposited by the Respondent were confirmed. The National Commission remanded the matter for re-consideration of compensation for escalation of cost of construction in accordance with CPWD rates.

6. The State Commission reconsidered the matter and permitted both sides to produce evidence which would enable it to compute the compensation for escalation of construction cost as per CPWD rates. The Respondent produced evidence to show that the escalation in cost of construction between April, 1989 and January, 2000 would be Rs. 18,67,000/-. An affidavit dated 06.02.2007 was filed by Sh. Vikram Singh Malik, Estate Officer, HUDA, Karnal on behalf of the Appellants in which it was stated that the physical possession of the plot was given to the Respondent on 21.01.2000. The Respondent submitted a building plan only on 14.02.2006 which would clearly prove that the Respondent was not interested in constructing the house. The submission of the Appellants that the Respondent was not entitled for more than Rs. 2,00,000/- towards increase in the construction cost was rejected by the State Commission on the ground that the National Commission directed computation of compensation at CPWD rates and that there was no restriction in the order of remand. The material produced by the Respondent to prove escalation in the cost of construction was accepted by the State Commission which held that the Respondent was entitled for a sum of Rs. 18,67,000/- as compensation. However, the State Commission held that since the Respondent did not commence construction till 2006 with a view to get more compensation. Therefore, she was awarded a compensation of Rs. 15,00,000/- instead of Rs. 18,67,000/- towards increase in the cost of construction.

7. The National Commission by an order dated 25.09.2007 dismissed Appeal No. 525 of 2007 filed by the Appellants and confirmed the order passed by the State Commission holding that the compensation awarded was just and reasonable. According to the National Commission even if 15 % interest on the amount of Rs.5 lakhs claimed by the Respondent for 10 years is awarded, the Respondent would be entitled to Rs. 12.5 lakhs. Aggrieved by the order dated 15.09.2007 in First Appeal No. 525 of 2007 of the National Commission, the Appellants have filed this Appeal.

8. The Counsel for the Appellants submitted that the Respondent was allotted the plot in the Government Discretionary Quota and that the Respondent did not approach the Appellants seeking possession of the plot till 1997. He also submitted that the Respondent did not commence the construction till 2006 though she was given possession on 21.01.2000. He further contended that the State Commission erred in awarding Rs. 15 lakhs as compensation when the earlier order granting Rs. 2 lakhs as compensation was not challenged by the Respondent. According to him, the remand by the National Commission was to examine whether the Respondent was entitled to Rs. 2 lakhs as compensation which meant that she cannot be given any compensation beyond Rs. 2,00,000/-.

9. The Counsel for the Respondent submitted that there was no restriction in the remand by the National Commission as the compensation towards escalation of the cost of construction was directed to be calculated as per CPWD rates. He submitted that the State Commission was right in awarding Rs. 15 lakhs as compensation when the deficiency of service by the Appellant in not handing over the possession of the plot till 2000 was proved. He also urged that the Civil Procedure Code has limited application in the Consumer Fora and relief cannot be denied on the grounds of defective pleadings and the relief sought. He also submitted that cogent material was placed before the State Commission to prove the escalation in the cost of construction between 1989 and 2000.

10. The avowed object of the
# Consumer Protection Act, 1986
is to provide for better protection of the interest of consumers. The statement of the objects and reasons, inter alia, provides for a speedy and simple redressal to consumer disputes. The quasi judicial bodies at the District, State and Central levels were empowered to give relief to the consumers and award, wherever appropriate, compensation to consumers.

11. Section 14 (1) (d) of the Act which is relevant for the adjudication of the dispute in this case is as follows:
# 14. Finding of the District Forum
(1) If, after the proceeding conducted under section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to do one or more of the following things, namely: …….
(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.”

12. The sine qua non for entitlement of compensation is proof of loss or injury suffered by the consumer due to the negligence of the opposite party. Once the said conditions are satisfied, the Consumer Forum would have to decide the quantum of compensation to which the consumer is entitled. There cannot be any dispute that the computation of compensation has to be fair, reasonable and commensurate to the loss or injury. There is a duty cast on the Consumer Forum to take into account all relevant factors for arriving at the compensation to be paid.

13. In # Charan Singh v. Healing Touch Hospital and Others, reported in (2000) 7 SCC 668
this Court held as follows:
“12. ….. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge.”
In # Ghaziabad Development Authority v. Balbir Singh, reported in (2004) 4 SCC 65
this Court was considering the compensation to be awarded to the consumers in cases of deficiency of service by Development Authorities like the Appellant herein and Ghaziabad Development Authority. Considering a situation similar to the one that arises in the instant case, it was held as follows:
“9. That compensation cannot be uniform and can best be illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting.
*** *** ***
11. Further, in cases where the Commission/Forum has directed delivery of possession, the party has to a certain extent already got a benefit. The cost of the land/flat would have gone up in the meantime. Of course, even in cases, where delivery of possession has been directed there could be compensation for the harassment/ loss. But such compensation has to be worked out after looking into the facts of each case and after determining what is the amount of harassment/loss which has been caused to the consumer.”

14. It is undisputed that the Appellant handed over the plot to the Respondent only in the year 2000 instead of 1989. The Respondent had paid Rs.1,22,400/- towards the cost of the plot at the rates prevailing in the year of allotment i.e. 1986. There is no dispute that the Respondent was paid Rs.1,28,188/- towards interest awarded by the State Commission. There is also no dispute about the fact that the Respondent did not commence construction till 2006. The State Commission while awarding the compensation of Rs. 15 lakhs towards escalation in the cost of construction commented on the conduct of the Respondent in delaying the construction only with a view to claim higher compensation.

15. The point that falls for our consideration in this case is whether the State Commission was justified in awarding Rs. 15 lakhs towards the escalation in the cost of construction as compensation. We are of the view that the Respondent is not entitled to such compensation awarded by the State Commission and confirmed by the National Commission. The Respondent suffered an injury due to the delay in handing over the possession as there was definitely escalation in the cost of construction. At the same time the Respondent has surely benefited by the increase in the cost of plot between 1989 to 2000. In our opinion, the order of the State Commission is vitiated for non application of mind to a vital and relevant factor and hence, suffers from the vice of unreasonableness. The State Commission criticized the conduct of the Respondent in intentionally delaying the construction for 6 years but still proceeded to award compensation. In the facts and circumstances of this case, we are of the opinion that award of interest would have been sufficient to compensate the Respondent for the loss suffered by him due to the delay in handing over the possession of the plot. The compensation of Rs. 15 lakhs awarded by the State Commission is excessive. As we have not reversed the impugned order on any other ground, it is not necessary for us to delve into other points that were urged by the Respondent.

16. For the aforementioned reasons, the Order of the State Commission dated 05.07.2007 as confirmed by the National Commission is set aside and the Appeal is allowed.
No costs.

When Karta of joint Hindu family can be called upon to give account for past transaction?

K V Narayanaswami Iyer vs K V Ramakrishna Iyer and Ors on 26 March 1964 in the Supreme Court of India

This brings us to Mr. Rajagopala Sastri's second argument.While admitting the legal position that in the absence of any evidence of fraud or misappropriation the Karta cannot be called upon to account for the past transactions, learned Counsel stresses the responsibility of the Karta to establish what are the assets available for partition. In support of this, the learned Counsel drew our attention to the decision in Parmeshwar Dube v. Gobind Dube(1). That case laid down the rule that in the absence of fraud or other improper conduct the only account the Karta of a joint family is liable for is to the existing state of the property divisible; but that this did not mean that the parties were bound to accept the statement of the Karta as to what the property consisted of and an enquiry should be directed by the court in a manner usually adopted to discover what in fact the property consisted of at the date of the partition.
____________________
Hindu Law
-Property acquired in the name of a member of joint family
-Joint family having sufficient nucleus on that date
-Presumption that property is acquired from joint family funds
-If rebuttable -Past transactions
-Manager when accountable.
___________________
There were three brothers who continued as members of a joint family with the eldest of them, the first respondent as the karta. Certain properties were acquired thereafter for the joint family. Certain properties were also acquired in the name of the first respondent's son his wife and grandson. The two other brothers of respondent no. 1 acquired properties for themselves out of their own earnings. Relations became strained between the brothers and the second brother the present appellant filed suit for partition claiming not only the original properties of the joint family and the properties acquired for the joint family by the Karta, the present respondent but also the properties acquired by the respondent no. 1 in the name of his wife, son and grandson as joint family properties. He also called on the first respondent to account for the past years. The third brother was impleaded as second defendant.
Respondent no. 1's contention was that the last mentioned properties were bought by him from his own savings and therefore were not part of the join, family property and consequently not liable to partition. The learned trial Judge held that those properties were joint family property and were liable to be partitioned. Respondent No.1 thereupon appealed to the High Court and the High Court allowed the appeal regarding substantial part of the schedule properties. Thereupon the appellant filed the present appeal.
Held: (i) Where properties were acquired in the name of a joint family member, if at the date of such acquisition the joint family had sufficient nucleus for acquiring it, the property should be presumed to have been acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown. In the present case on a consideration of the evidence it is found that the joint family had at the date of the acquisition Of the properties in question sufficient nucleus from which these properties could be acquired.
Amritlal Sen & Ors. v. Surath Lal Sen, A.I.R. 1942 Cal. 553 and Appalaswami v. Suryanarayanamurthy, I.L.R. [1948] Mad. (P.C.) 440, referred to.
(ii) In the absence of any evidence of fraud or misrepresentation the Karta of a joint family cannot be called upon to account for the past transactions, but this does not mean that the parties were bound to accept the statement of the Karta as to what the property consisted of and an enquiry should be directed by the court in a manner usually adopted to discover that in fact the property consisted of at the date of the partition. In what manner this principle can be applied depends on the facts and circumstances of each case. Where as in the present case the evidence, on record shows prima facie that the Karta could not reasonably be expected to have in his hands at the date of the suit any accumulaties found on evidence to have been acquired by the family, there can be no justification for calling the Karta to account for his past dealing with the joint family property and its income.
Parameshwar Dube v. Govind Dube, I.L.R., 53 Cal. 459, explained.

________________________________
Supreme Court of India
CIVIL APPELLATE JURISDICTION:
Civil Appeal No. 589 of 1960.
Appeal by special leave from the judgment and decree dated April 28, 1953, of the Madras High Court in A.S. No. 695 of 1949.

K. V. Narayanaswami Iyer vs K. V. Ramakrishna Iyer And Ors on 26 March, 1964
Equivalent citations: 1965 AIR 289, 1964 SCR (7) 490
BENCH:
GUPTA, K.C. DAS
SUBBARAO, K.
DAYAL, RAGHUBAR

JUDGMENT:

K.N. Rajagopal Sastri, K. Jayram and R. Ganapthy Iyer. for the appellant.
A. V. Viswanatha Sastri and T.V.R. Tatachari, for respondent nos. 1, 3, 4 and 6 to 8.
B. Kalyana Sundaram, M. Rajagopalan, K. Rajendr Choudhry, M. R. Krishna Pillai for K. R. Chaudhuri, for respondent no.

2. March 26, 1964. The Judgment of the Court was delivered by DAs GUPTA, J.-Three brothers, Ramakrishna, Narayanaswamy and Mahadeva., who are eighty-three, seventy nine and sixty nine years of age respectively, are the main figures in this litigation. After their father's death in 1908 the three brothers continued as members of a joint family. The eldest brother, Ramakrishna became under the law the Karta of the family. When the father died the family was possessed of about 10 acres of land. But he had left some debts and one of the first acts which Ramakrishna had to do as the Manager was the repayment of those debts. Ramakrishna had become the Karnam in Narasingampettai in 1902 and even during his father's life time started acquiring property. Property to the extent of about 25 acres was acquired for the joint family between the years 1911 to 1931. In 1927 Ramakrishna had been transferred to the bigger village of Vepatthur and continued to be there till 1930. On his retirement in that year his son Venkatarama succeeded him as the Karnam of Vepatthur. Between 1931 to 1946 properties in Vepatthur and other villages were acquired in the name of Ramakrishna's son Vankatarama, his wife Mangalathammal, his grandson (Ven- katarama's son) Mahalingam. Some property was acquired also in the name of Mangalathammal's brother Raja Ayyar. Monies were also invested in loans in the names of Ramakrishna's wife. Mangalathammal, his son Venkatarama and his grandson, Mahalingam.
The second brother Narayanaswami became a Vakil's clerk in Kumbakonam in 1910. The third brother Mahadeva who was a boy a of thirteen at the time of his father's death was put into the medical school and qualified as a doctor. He was in service as a Sub-Assistant Surgeon at the time when the present suit was instituted by Narayanaswamy. Both of them earned well and have admittedly acquired properties for themselves out of their own earnings.
As early as the thirties feelings became strained between Ramakrishna, the eldest brother and Narayanaswami the second brother. Mahadeva who had to remain away at different places in connection with his service demanded partition of the joint family properties and in this Narayanaswami also seems to have joined him. The extreme action of going to courts was however not taken so long as mother was alive. She died early in 1945 at the age of 90 years. In December, (12th December) 1946 Narayanaswami sent a lawyer's notice to Ramakrishna in which he claimed that not only the 25 acres acquired between 1911 and 1931 but also the properties ac- quired in the name of Ramakrishna's wife, his son and brother-in-law had been acquired with the income of the family and formed part of the joint family properties. He claimed also in this notice that family funds of about Rs. 25.000/- was in the hands of Ramakrishna in the shape of cash and Benami investments. He demanded a partition of all these properties and of the cattle and other movable properties owned by the family. He also called upon Ramakrishana to account for the income derived from the family properties "for the last three years at least". In all these he claimed a one-third share.
To this Ramakrishna replied on December 1, 1946. He stated that the joint family properties consisted only of 10 acres left by their father and about 25 acres acquired later on and denied that the other properties belonged to the family. Soon after this, on the 1st February 1947. Narayanaswami brought this suit for partition and accounts in the court of the Subordinate Judge, Kumbakonam. The eldest brother Rama- krishna was impleaded as the first defendant; Mahadeva the third brother, was the second defendant, Ramakrishna's son Venkatarama. his wife Mangalathammal and his brother-inlaw Raja lyer were in-pleaded as the third, fourth and the fifth defendants respectively. Mahalingam was impleaded as the sixth defendant. Two other minor sons of Venkatarama were also impleaded. They are the seventh and the eighth defendants in the case.
The plaintiff's case was short and simple. He claimed that Ramakrishna as the Karta of the joint family managed the family properties and acquired properties with the family funds from 1911 to 1946. He thus claimed that not only the acres and 58 cents of land in the village Kumarakshi (men- tioned in the A Schedule) which the first defendant Rama- krishna's wife or son or grandson or brother-in-law were joint ties mentioned in the Schedules B, Bl and B2, and C, C1 and C2 and D for which the sale deeds stood in the name of Ramakrishna's wife or son or grandson or brother-in-law were joint family properties. He claimed also that between 1931 and 1946 Ramakrishna. the Karta. had invested family funds in the name of his wife. his son and his grandson and these were also joint family properties. The movable properties claimed to be joint family properties were mentioned in Schedule A2, while the house in Thiagarajapuram. also claimed to be joint family property was mentioned in AI Schedule. The plaintiff prayed for allotment to him of one third share of these properties by division in metes and bounds into three equal shares. He further prayed for a direction on the first defendant to account for the management of the family properties for three years and for payment to the plaintiff of his share in the amount that may be found due.
The second defendant Mahadeva generally supported the plaintiff though as regards the years, 1940, 1941, 1942 and 1943 his case in the written statement was that it was the plaintiff Narayanaswamy and not the first defendant who collected the income from the join family properties. For these four years, he pleaded that the plaintiff was liable to render an account while for the remaining period the first defendant was said to be liable. In a Schedule to his written statement he mentioned several other items of properties which he claimed belonged to the joint family though one of the sale deeds stood in the name of the sixth defendant Mahalingam and the other in the name of the fifth defendant Raja Ayyar. The other defendants contested the suit.
The first defendant's case was that though on his father's death he became in law the Karta of the joint Hindu family the actual management was carried on by the mother till 1940 and from 1940 till the mother's death in 1945 by the plaintiff Narayanaswami. It was only after the mother's death that he has taken up the management of the properties. He pleaded that of the properties mentioned in the plaint only 34.58 acres mentioned in the A Schedule formed the joint family property. (In addition to some of the movable properties mentioned in A2 Schedule). He further pleaded that a house in Kumbakonam town which was acquired by the plaintiff in his own name as also some lands in Manalur village in Kumbakonam and Rs. 8,000/- in cash which the plaintiff had obtained on sale of certain lands also formed part of the joint family property.
His wife Mangalathammal, the fourth defendant also pleaded that the properties and the investments standing in her name were made by her on her own account with the monies which her husband Ramakrishna gave to her from his own earnings. These therefore were not part of the joint family property and consequently not liable to partition. The third defendant (Venkatarama's) case was that the purchases of land and investments of money standing in his name were all with his own earnings since he became Qarnam and did not form part of the joint family property. As regards what stood in the name of his son Mahalingam the third defendant pleaded that these were with his own earnings. The fifth defendant also pleaded that whatever stood in his name was acquired by him with his own money and did not form part of the joint family of the plaintiff and his brothers.
The learned Subordinate Judge held on a consideration of the evidence that the plaintiff's case 'that the oldest brother Ramakrishna managed the family property as the Karta from and after their father's death in 1908 till the date of the suit had been established. He also came to the conclusion that in about 1931 Ramakrishna had with him an accumulated income of about Rs. 14,000/- belonging to the family and but very little money of his own,, From these findings it was an easy step to hold, as the learned Judge did. that the immovable properties mentioned in Schedules A, Al, B, B1., C. Cl, C2 and D as also Item 5 in Schedule B2 were all properties belonging to the joint family. Out of these he found that the properties in Schedule Al, that is, a house in Thiagarajapuram had been, given away to the sister Rukmaniammal and was no longer a joint family property and therefore not liable to division. The rest of the properties, he held, was liable to be divided among the three brothers, the plaintiff and the defendants 1 and 2. The Court also held that the mortgages and promissory notes on which money had been lent in the names of defendants 3 to 5 belonged to the joint family with the exception of a few standing in the name of the third defendant (Venkatarama) which was held to be the third defendant's personal property. A preliminary decree was made by the Court in accordancewith these findings with a direction that an account be taken with reference to income of the properties in Schedules A, A1, B, B1, C, C1 and D and Item 5 in Sch. B2 and the house at Kumbakonam mentioned in the Schedule to the first defendant's written statement, for three years prior to the date of the suit and from the date of the suit till the passing of the final decree. As regards the properties in Schedule A it was, directed that the accounting will cease from the date on which the parties took possession of their share in accordance with the interim decree.
Against this decision the first defendant appealed to the High Court of Judicature at Madras. The plaintiff also filed-
an appeal challenging the decision of the Subordinate Judge that the house in Kumbakonam was a joint family property. 'The High Court allowed the plaintiff's appeal holding that the Kumbakonam house was a separate self Acquisition of the plaintiff. Against this decision of the High Court no appeal has been preferred and we are no longer concerned with the question whether this house was plaintiff's property or not.
In the appeal preferred by the first defendant the High Court came to the conclusion, disagreeing with the Trial court, that the first defendant Ramakrishna had saved enough from his separate earnings from which it was quite possible for him to make all the acquisitions and investments in the name of his son, wife and grandson subsequent to 1930. In the opinion of the High Court the view of the Subordinate Judge that by 1930 the first defendant had in his hands a sum of Rs. 14,000/- accumulated from the income of the joint family lands was "surprising and untenable". It did not disturb the Trial Court's findings that Schedule D land acquired in the name of the 3rd defendant was joint family property, apparently because no appeal had been filed as regards this property. Taking these 14 acres to be acquisitions for the family the High Court recorded its conclusion thus:-
"When we consider that the joint family nucleus has been more than quadrupled, it is difficult to see what grievance the younger coparceners really have, particularly the second defendant, who after keeping for himself his earnings as a Doctor in Government Service finds himself entitled to a share in a greatly increased ancestral patrimony."
Finally the High Court concluded "that the plaintiff has not shown that any of the acquisitions or investments in the names of defendants 3, 4 and 6 were made from joint family funds." Accordingly, it allowed also the appeal preferred by the first defendant, holding that the only items liable for partition as joint property assets were those in Schedules A and D. It also ordered that the first defendant would account for the income from 12th December 1946, the date on which notice demanding partition was sent to him by the plaintiff. The present appeal has been preferred by the plaintiff against this decision of the High Court. Two main arguments were advanced before us by Mr. Rajagopala Sastri in support of the appeal. The first is as regards the properties purchased in the name of the first defen- dant's wife, his son, and his grandson. Learned Counsel submitted that the High Court did not record any clear conclusion that at the date of the acquisition of these properties the joint family had not a sufficient nucleus for acquiring these.
He argued that the acquisitions in the name of the first defendant's wife was admittedly with funds advanced by the first defendant himself; and if at the date of the acquisition in her name the joint family had sufficient nucleus for acquiring them, the presumption would be that they were acquired with joint family funds notwithstanding the fact that the first defendant may have sufficient funds of his own for the same purpose. It was rightly argued that in such a case the property should be held to be joint family property unless the presurmption of the acquired property also being joint family property was rebutted by the first defendant. It was also argued that acquisitions in the name of the third defendant and the sixth defendant should also be held to have been made with funds advanced by the first defendant himself and so these also should be presumed to have been acquired with joint family funds if it is shown that the joint family had sufficient nucleus for acquiring these at the date of the acquisitions and the first defendant does not show positively that the funds with which they were acquired did not belong to the joint family. The legal position is well settled that if in fact at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring it, the property In the name of any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown. (Vide Amritlal Sen & ors., v. Surath Lal Sen & others(1) Appalaswami v. Suryanarayanamurthy & others(2). In the case before us, it is not disputed that the acquisi- tions in the name of the first defendant's wife were made with funds advanced by him. As regards the acquisitions in the name of the third defendant and his minor son the sixth defendant also we find it reasonable to hold from the evidence, as regards the earnings of the third defendant and other circumstances, that for these acquisitions also money was paid by the first defendant. The question whether the joint family had at the time of each of these acquisitions sufficient nucleus from which the acquisitions could have been made is therefore of great importance. On a consideration of the evidence, as discussed below, we have come to the conclusion that it does not appear that the joint family had at the date of the acquisitions made in the names of the first defendant's wife. his son, and his grandson sufficient nucleus from which these properties could be acquired. In coming to this conclusion we have taken into consideration the fact that family funds were spent in purchasing 14 acres of land mentioned in the name of the 5th defendant.
(1) A.I.R. 1942 Cal. 553.
(2) I.L.R. [1948] Mad. (P.C.) 440.
The period during which acquisitions admittedly for the joint family were made came to an end in about 1931. At that time the first defendant had, according to his own evidence, about Rs. 15,0001- in his hand. His case is that this entire K. amount was what he had accumulated out of his own earnings. The Subordinate Judge held that a little more than Rs. 14,000 / - out of this amount was the savings from the family funds. We agree with the High Court that this conclusion is not justified by the evidence on the record. As rightly pointed out by the High Court properties worth about Rs. 20,000/had been purchased out of the family income during this period. During part of this period at least monies had to be spent for other requirements of the family including the expenses on the education of the third brother Mahadeva. The several documents produced in the case show that at the time of more than one purchase the first defendant had to borrow money on promissory notes to pay the consideration mentioned in the documents. It is worth mentioning that even the plaintiff was not prepared to say that the family income was sufficient to pay for these purchases. In cross-examination a question was put to him in these words:-
"Q. From 1911 out of the family income Rs. 20,000/worth of lands had been purchased? Can there have been more income from the family lands?"
The answer is significant. It was in these words: --
"A. From the family income, the joint income of myself and Defendant 1 certainly exceeded Rs. 20,000/-. The income of myself and Defen- dant 1 which went in the purchase of lands may have come to Rs. 10,000/-".
In other words, the plaintiff himself seem to concede that only Rs. 10,000/- of the family income was available during this period for purchase of lands. The claim made here that he also contributed to the purchase is clearly inconsistent with his own written statement and with other parts of his evidence and cannot be accepted.
The learned Subordinate Judge, appears to have been con- vinced that Ramakrishna's personal earnings were very little. He thought also that what little Ramakrishna earned was required for the expenses of his own branch of the family. The learned Judge concluded that he could not have saved out of these earnings. This view appears to have been mainly responsible for this conclusion that almost the whole of Rs. 15,0001which the defendant No. 1 admitted to have with him in about 1931 came out of the family funds. In our opinion, the materials on the record do not justify the Trial Court's view that Ramakrishna could not have accumulated a sum of Rs. 15,000/- out of his own income. The mamools which he received as Karnam of Narasingampettai and later on of the bigger village Vepatthur amounted to a considerable quan tity of paddy and must have fetched him a goodly income. There was apart from this, his income from the banana plan- tations which he had at Narasingampettai. One of the lease deeds shows a receipt of Rs. 450/- for one season. Taking good years with bad, it would not be unreasonable to think that this also brought him a few thousands of rupees. We are convinced also on a consideration of his evidence, taken with the entries in the account book of Appaswamy Iyer (Ex. B IO 1) that he received a sum of Rs. 2,500/- as reward for successfully maintaining the litigation on Appalaswamy's behalf. There can be little doubt that he received good sum also as fees for writing documents. One of his witnesses, Narayanaswami Reddiar, DW 7, has given evidence that he paid the defendant Rs. 1,000/- as fees for the documents written for him. Even if this be considered an exaggeration, it s quite clear from, the evidence of this witness that Ramakrishha who, it may be noted, was a man of some education, did a flourishing side business as a writer of documents, saved two or three thousand rupees, earned by him by this work during the entire period he served as a Karnam. It is more than probable that he had other sources of income which he did not think it prudent to mention in the witness box.
On a consideration of the circumstances we are convinced that this story that he had Rs. 15,O0O/- in his hands in about 1931 as accumulated out of his own earnings is sub- stantially true.
Mr. Rajagopala Sastri has however rightly pointed out that a finding that in 1931 very little remained out of the family income would not be sufficient to show that there was no sufficient nucleus for the acquisition of the different pro- perties in the name of the defendant's wife, his son and his grandson after 1931 For a proper decision of this question it is necessary to consider roughly the income and expenditure out of the admittedly family properties during this period.
We shall first consider the period, 1931 to 1939, as it is clear from the evidence that during this period the defendant No. 1 carried on the actual management of the joint family properties. It is common case of both the parties that the paddy yield in 1931 was 856 kalams; during 1932 1,000 kalams and during 1933 1,118 kalams. For the next five years paddy yield was, according to the respondent's counsel, 1,058, 1,058, 958, 958, and 958 kalams. The appellant's counsel puts his estimates and 1,160 kalams respectively. These differences in the estimates for these years at the higher figures of 1,360, 1,360, 1,160, 1,160 seem to be mainly due to the fact that while, according to the respondent, the family was in possession of only six acres of mortgaged land in addition to the 35 acres, the appellant's case was that an additional area of six acres of mortgaged land was also in the family's possession during these years. Mr. Rajagopala Sastri was not however able to point out anything on the record in support of this claim. We think it reasonable therefore to accept as substantially correct the estimate of paddy yield as mentioned before us on behalf of the respondent for these years. For the year 1939 the yield may be taken as 1,153 kalams roughly as in that year the D Schedule lands now found to be the property of the joint family had also been acquired.
On an examination of the evidence on the record we accept the the price for each kalam of paddy to be Rs. 2.50 nP for each of the years 1931 and 1932 and 1.19, 1.25, 1.37, 1.40, 1.50, 1.56 and 1.62 for the years 1933 to 1939 respectively, as contended before us on behalf of the respondent. The total income received from paddy in these nine years thus appears to be about Rs. 14,976/-. To this has to be added the receipts from the dry crops like black grams and green
-rams grown on some of the lands. We accept the evidence given by the defendant that dry crops were not grown in every year and also not on all the lands. The sale proceeds of black grams and green grams amounted to Rs. 72/- for the year 1935 according to the account book Ex. A 98. Taking this to be the average receipt per year from the dry crops the receipts from these crops during the nine years under consideration amounted to about Rs. 648/-. The total income from the crops grown on the joint family lands during the years 1931 to 1939 thus works out approximately to be about Rs. 15,624/-. Adding to this the sum of Rs. 1,100/- received on repayment of the mortgage loan on Ex. 187 the joint family earnings during these nine years appears to have amounted to about Rs. 16,724/-.
It is now necessary to have some idea of the expenditure incurred during these years. The claim of expenditure of Rs. 5,172/- during these years made before us on behalf of the respondent is not disputed by the appellant. We think also that the respondent's claim that Rs. 1,100/- advanced on the mortgage bond (Ex. 187) was paid from family funds should be accepted. We have next to add the sum of Rs. 6,500/- that was paid for the purchase of the D Schedule lands, Rs. 4,030/- paid as kists and Rs. 2.000 / - as cultivation expenses including Kariasthan's pay. The total expenditure during the nine years-1931 to 1939-amounted thus to more than Rs. 18,000 / -.
Proceeding therefore on the basis on which there is no longer any dispute, that the D Schedule lands were acquired out of the family funds, it appears clear that the joint family did not possess sufficient nucleus for making any of the other purchases.
made during this period, viz., the properties mentioned in Schedules B and BI purchased by the document Ex. 125, the properties mentioned in Schedule Cl purchased by the document Ex. B 124, the properties mentioned in Schedule C purchased by Ex. 129, the properties mentioned in the Schedule to the written statement of the second defendant purchased by documents Exhibits B 134 and B 135. The High Court's conclusion as regards these properties that they did not form part of the joint family properties and are not liable to partition in the present suit is therefore clearly correct.
The properties mentioned in Schedule C2 were purchased on the 24th April 1941 by Ex. 136 in the name of the 4-th defendant while properties mentioned in Item 1 of B2 Schedule were purchased on the 19th August 1942 by Ex. 126 in the name of the sixth defendant. Though it was the first defendant's case that he had nothing to do with these purchases we are convinced on a consideration of the evidence that the monies for these purchases were also advanced by him. To decide whether these properties or the properties mentioned in Item 5 of Schedule B2, a house in Vepatthur, of which mortgage was taken in the name of the first defendant himself by Ex. B 1929 on the 10th May 1942, formed part of the joint family property, it is necessary to examine what funds, if any, belonging to the joint family were with the first defendant during these years. The first defendant's case, as already indicated, is that from 1940 till the mother's death in 1945 the plaintiff and not he managed the joint family properties so that he did not receive any portion of the joint family earnings during the period. The plaintiff has strenuously denied the truth of this statement. There are several circumstances however which make us think that the first defendant's version is true. The most imoprtant of these is the fact that the youngest brother Mahadeva, who is clearly siding with the plaintiff in this family quarrel, made a definite assertion in his written statement in these words: "Similarly the plaintiff has been collecting the income from the joint family properties during the years 1940, 1941, 1942 and 1943." He also stated there that the plaintiff had assured him that he would maintain proper accounts for the collection and expenditure of the income joint family for his period of management and made the definite claim that the plaintiff was liable to render an account for the period of his management. It is true that at the trial Mahadeva tried to explain away this assertion in the written statement by saying that this was based on information given to him by the defendant No. 1. In the very next sentence, however, he again said that this view that the plaintiff was exclusively managing for certain years was his coiiclusion. It is important to notice in this connection that at the bottom of Ex. B 190 dated the 13th March 1941 which Mahadeva received from Ramakrishna, Mahadeva made in his own hand an entry in red ink to the following effect: -
"1939-Kuruvai (paddy)-sold by Nana 1939-Semba Mudal (harvest)-by Nana, sold in 1940."
It is true that there are some letters which indicate that even during 1941 and thereafter Ramakrishna was issuing some instructions to the Kariasthan. But, considering the facts mentioned above along with the letters Exibits B 177 and B 72 in which detailed instructions about the cultivation were being given by the plaintiff to the Kariasthan, we have come to the conclusion that from about 1940 till the mother's death early in 1945 the plaintiff displaced the first defendant from the management of the family lands and took away all the family lands in Kumarakshi and took away all the income from them.
The only income from joint family properties that appears to have come into the hands of the first defendant during this period was that from D Schedule lands. The yield from these lands may roughly be estimated at about 300 kalams for each year. The price per kalam in 1941 appears from Ex. 100 to have been Rs. 2/6/-. The net income, after payment of the kist and debiting the expenses of cultivation etc., may be placed there-fore at about Rs. 500 It is undoubtedly a very rough estimate. But in the absence of anything more specific on the record we think it proper to accept this as a reasonable basis for ascertaining the nucleus available in the first defendant's hands from the D Schedule property. On this calculation the first defendant appears to have had in his hands about Rs. 1,5001 during the years 1940 to 1942. There was already however a deficit of more than this amount on his management of the properties during the previous period 1931 to 1939. It is reasonable therefore to think that there was no nucleus from the joint family properties which the first defendant could have possibly used in making the acquisitions during 1941 and 1942. The conclusion of the High Court that these properties did not belong to the joint family and are therefore not liable to partition cannot therefore be disturbed.
Some of the properties mentioned in Schedule B2 to the plaint were purchased in 1945 and 1946 by Ex. B 127 aid B. 128 in the name of the third defendant, Venkatarama. At the time of these acquisitions the third defendant had been karnam of Vepatthur for over 15 years. It is not unlikely he would have saved some portion of his own earnings during this period so as to be able to pay for these purchases out of his own earnings. It cannot therefore be said reasonably that these purchases were made from funds advanced by the first defendant. Apart from this, it appears that the plaintiff has not been able to show that at the time of these acquisitions the first defendant had with him sufficient income out of the joint family properties for purchasing all these lands. We have already found that the first defendant resumed management of the joint family properties on his mother's death in 1945. On the question about the income and expenses during this period there is hardly any evidence worth the name on the record. On a consideration of all these circumstances, we are of opinion that the High Court's conclusion as regards these properties also that they did not form part of the joint family property is correct.
The brings us to Mr. Rajagopala Sastri's second argument.While admitting the legal position that in the absence of any evidence of fraud or misappropriation the Karta cannot be called upon to account for the past transactions, learned Counsel stresses the responsibility of the Karta to establish what are the assets available for partition. In support of this, the learned Counsel drew our attention to the decision in Parmeshwar Dube v. Gobind Dube(1). That case laid down the rule that in the absence of fraud or other improper conduct the only account the Karta of a joint family is liable for is to the existing state of the property divisible; but that this did not mean that the parties were bound to accept the statement of the Karta as to what the property consisted of and an enquiry should be directed by the court in a manner usually adopted to discover what in fact the property consisted of at the date of the partition. About the correctness of this proposition there is no dispute. In what manner this principle can be applied depends however on the facts and circumstances of each case. Where, as in the present case, the evidence already adduced before the court shows prima facie that the Karta could not reasonably be expected to have in his hands at the date of the suit any accumulation worth the name in addition to the immovable properties found on evidence to have been acquired for the family, there can be no justification for calling the Karta to account for his past dealings with the joint family property and its income. In the circumstances of this case therefore the order of the High Court that there was no liability on the first defendant as managing member to render any account of any kind prior to the 12th December 1946, on which notice demanding partition was issued, does not call for any modification.
In the result, the appeal is dismissed with costs.
Appeal dismissed.
____________________
(1)Parmeshwar Dube v. Gobind Dube I.L.R. 53 CaL 459.

Difference between deaths on attack with enraged mind without intention to murder and murder with intention

Gurpal Singh Vs State of Punjab on 2nd December 2016 in the Supreme Court of India

3. …………………
………………………
It was alleged that over a lingering land dispute between the informant and the appellant, who are brothers, on 06.07.2002, while Jugraj, the son of the informant was in his fields, the appellant had hurled abuses to him. Jugraj having felt humiliated and anguished, on returning home, complained about the same to his father Gurdial, the informant.
The houses of the brothers were adjacent to each other. When the appellant returned home from his fields, the informant went to the terrace of the roof of his house and summoned the former to that of his. The appellant and his son Harpartap responded to the call whereafter informant enquired of Gurpal as to why he had abused his son. This enraged the appellant and while arrogantly proclaiming that he was not only justified to do so but that he would continue to conduct himself as done, rushed downstairs of his house and brought his DBBL gun. His son Harpartap, the acquitted co-accused was also with him. It is alleged by the prosecution that on the exhortation of Harpartap, the appellant opened fire, which hit the informant on the side of his head.
Meanwhile drawn by the commotion, Paramjit Kaur, the wife of the informant, Jatinder Singh and Lakhwinder Singh, friends of Jugraj rushed to the terrace. On seeing them, the appellant fired from his gun towards them, which hit Paramjit and Jatinder on their abdomen and Lakhwinder on his mouth and head. On hue and cry being raised, the appellant and the accused fled the scene.

10. However, in the singular facts of the case and noticing in particular, the progression of events culminating in the tragic incident, we are inclined to reduce the sentence awarded to him. Incidentally, the occurrence is of the year 2004 and meanwhile twelve years have elapsed.
Further, having regard to the root cause of the incident and the events that sequentially unfolded thereafter, we are of the comprehension that the appellant was overpowered by an uncontrollable fit of anger somuch so that he was deprived of his power of self-control and being drawn in a web of action reflexes, fired at the deceased and the injured, who were within his sight.
The facts do not commend to conclude that the appellant had the intention of eliminating any one of those fired at, though he had the knowledge of the likely fatal consequences thereof.
Be that as it may, on an overall consideration of the fact situation and also the time lag in between, we are of the view that the conviction of the appellant ought to be moderated to one under Section 304 Part 1 IPC and 307 IPC.
Further, considering the facts of the case in particular, according to us, it would meet the ends of justice, if the sentence for the offences is reduced to the period already undergone. We order accordingly.
11. Ex-consequenti, the appeal is partly allowed. The conviction of the appellant is converted to one under Section 304 Part 1 and 307 IPC and the sentence is reduced to the period already undergone. In this view of the matter, as a corollary, the appellant is hereby ordered to be set at liberty forthwith, if he is not required to be detained in connection with any other case.
------------------------------------------------------------------------------

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1145 OF 2016
(ARISING OUT OF S.L.P (CRIMINAL) NO.4877 OF 2012)

GURPAL SINGH .…APPELLANT
VERSUS
STATE OF PUNJAB ....RESPONDENT

J U D G M E N T
AMITAVA ROY, J.

The subject matter of scrutiny is the judgment and order dated 01.10.2008 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 378-DB of 2004 concurring with the verdict of the Trial Court in convicting the appellant for the offence under Sections 302 and 307 IPC while acquitting the co-accused Harpartap Singh, his son. Following his conviction, the appellant had been awarded sentence of life imprisonment and fine of Rs.5,000/- with default sentence under Section 302 IPC and five years rigorous imprisonment and fine of Rs.2,000/- with default sentence under Section 307 IPC. Both the sentences have been ordered to run concurrently. The High Court has concurred with the sentence as well.

2. We have heard Mr. Yatindra Singh, Senior Advocate, learned Amicus Curiae for the appellant and Mr. Saurabh Ajay Gupta, learned counsel for the respondent.

3. The incident witnessing the death of Jatinder Singh and the injuries sustained by Lakhwinder has the genesis in a trifle. On a statement rendered with regard thereto by Gurdial Singh(PW1), the First Information Report was registered against the appellant and his son Harpartap. It was alleged that over a lingering land dispute between the informant and the appellant, who are brothers, on 06.07.2002, while Jugraj, the son of the informant was in his fields, the appellant had hurled abuses to him. Jugraj having felt humiliated and anguished, on returning home, complained about the same to his father Gurdial, the informant.
The houses of the brothers were adjacent to each other. When the appellant returned home from his fields, the informant went to the terrace of the roof of his house and summoned the former to that of his. The appellant and his son Harpartap responded to the call whereafter informant enquired of Gurpal as to why he had abused his son. This enraged the appellant and while arrogantly proclaiming that he was not only justified to do so but that he would continue to conduct himself as done, rushed downstairs of his house and brought his DBBL gun. His son Harpartap, the acquitted co-accused was also with him. It is alleged by the prosecution that on the exhortation of Harpartap, the appellant opened fire, which hit the informant on the side of his head.
Meanwhile drawn by the commotion, Paramjit Kaur, the wife of the informant, Jatinder Singh and Lakhwinder Singh, friends of Jugraj rushed to the terrace. On seeing them, the appellant fired from his gun towards them, which hit Paramjit and Jatinder on their abdomen and Lakhwinder on his mouth and head. On hue and cry being raised, the appellant and the accused fled the scene.

4. The injured were rushed to the Guru Nanak Dev Hospital, Amritsar where they were treated. However, Jatinder succumbed to the injuries sustained. After completing the investigation, charge-sheet was laid against both the accused persons under Sections 302 and 307 IPC.

5. The accused persons denied the charge and, therefore were tried. The prosecution examined several witnesses including the informant, the injured and the doctor who had performed the post-mortem examination and had attended the injuries of others involved. The accused persons were examined under Section 313 Cr.P.C. and on the completion of the trial, the Trial Court convicted the appellant under Sections 302, 307 IPC but acquitted the co-accused Harpartap. To reiterate, the High Court has affirmed the conviction and the sentence recorded by the Trial Court.

6. The learned Amicus Curiae has persuasively argued that the prosecution has utterly failed to prove the charge against the appellant which is patently deducible amongst others from the exoneration of the co-accused Harpartap, who allegedly had instigated the former to open fire on the deceased and the injured.
Apart from contending that all the purported eye-witnesses are relatives inter se, and therefore inherently partisan and thus are wanting in creditability, the learned senior counsel in the alternative has urged without prejudice that even if the prosecution case, as projected, is accepted in its entirety, no case for murder or attempt therefor has been proved and, therefore in any view of the matter, the sentence needs to be reduced appropriately.

7. The learned counsel for the respondent, as against this, has urged that in the face of telltale testimony of the injured eye-witnesses, supported on all fours by the medical evidence, the charge levelled against the appellant stands proved beyond reasonable doubt and thus the concurrent determinations of the courts below do not warrant any interference in the appeal.

8. We have examined the evidence pertaining to the incident as available on records. The eye-witnesses including the informant have offered a consistent, coherent and convincing narration thereof which does not admit of any doubt of their trustworthiness.
The plea of their family relationship to discredit them does not commend for acceptance in the attendant facts and circumstances.
Noticeably, in course of the investigation, amongst others, the 12 bore DBBL gun loaded with two live cartridges used for the offence had been recovered from the appellant. The site plan prepared by the investigating officer also pins the place of occurrence as deposed by the witnesses. Further four cartridge shells have also been recovered from the said spot.

9. The medical evidence reveals injuries on the deceased and the injured compatible with the weapon used. The charges levelledagainst the appellant thus have been proved beyond doubt. The co-accused Harpartap has been acquitted in view of absence of any incriminating evidence against him. His acquittal, having regard to the state of evidence has no bearing on the inculpatory involvement of the appellant somuch so, that his conviction in isolation is sustainable.

10. However, in the singular facts of the case and noticing in particular, the progression of events culminating in the tragic incident, we are inclined to reduce the sentence awarded to him.
Incidentally, the occurrence is of the year 2004 and meanwhile twelve years have elapsed. Further, having regard to the root cause of the incident and the events that sequentially unfolded thereafter, we are of the comprehension that the appellant was overpowered by an uncontrollable fit of anger somuch so that he was deprived of his power of self-control and being drawn in a web of action reflexes, fired at the deceased and the injured, who were within his sight. The facts do not commend to conclude that the appellant had the intention of eliminating any one of those fired at, though he had the knowledge of the likely fatal consequences thereof. Be that as it may, on an overall consideration of the fact situation and also the time lag in between, we are of the view that the conviction of the appellant ought to be moderated to one under Section 304 Part 1 IPC and 307 IPC. Further, considering the facts of the case in particular, according to us, it would meet the ends of justice, if the sentence for the offences is reduced to the period already undergone. We order accordingly.

11. Ex-consequenti, the appeal is partly allowed. The conviction of the appellant is converted to one under Section 304 Part 1 and 307 IPC and the sentence is reduced to the period already undergone.
In this view of the matter, as a corollary, the appellant is hereby ordered to be set at liberty forthwith, if he is not required to be detained in connection with any other case.

.............................................J.
(DIPAK MISRA)

…...........................................J.
(AMITAVA ROY)
NEW DELHI;
DECEMBER 2, 2016.

Student's dissatisfaction can't be ground for revaluation of answer sheet: Karnataka HC

Student's dissatisfaction can't be ground for revaluation of answer sheet: Karnataka HC
Can be ordered by the High Court under Article 226 of the Constitution in exceptional cases of mala-fides, tampering and gross negligence. Not otherwise. 

The Karnataka high court has observed that revaluation of an answer sheet should not be ordered merely because another valuer is of the view that the marks should have been different.

"In my opinion, in rare and exceptional cases where mala-fides or tampering or gross negligence in valuation is made out, the high court may allow revaluation by exercising extraordinary jurisdiction under Article 226 of the constitution. However, revaluation is not to be ordered merely because another person is of the view that the marks should have been different" Justice H G Ramesh has observed while dismissing the petition filed by one Maria Loraine Lydia, a 1st year MBBS student of father Muller's Medical College, Mangaluru.

The Judge has also noted that grievance of the petitioner was that she should have been awarded one mark more and the same cannot be considered as a ground to order revaluation of the answer sheet.

The petitioner had sought for revaluation of her answer script in theory paper -2 of Biochemistry of first year MBBS examination of RGUHS.

Lydia's counsel argued that the first valuer had given 2.5 marks and the second valuer gave zero marks in respect of question no.9. He further claimed that the petitioner got the same answer valued by a professor and head of department at the Bangalore Medical College and he had given 2.5 marks and the resultant effect is that she got one marks less, 31 marks against 32.

___________________________________________

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

BEFORE

THE HON’BLE MR. JUSTICE H.G.RAMESH

WRIT PETITION NO.52822/2015 (EDN-RES)

DATED THIS THE 11TH DAY OF DECEMBER 2015

BETWEEN:

MARIA LORAINE LYDIA

D/O DAVID B

AGED ABOUT 19 YEARS

I MBBS, FATHER MULLER’S MEDICAL COLLEGE

KANKANADY, MANGALURU-575 002 ...PETITIONER

(BY SRI AJOY KUMAR PATIL, ADVOCATE)

AND:

1. RAJIV GANDHI UNIVERSITY OF HEALTH

SCIENCES, 4TH ‘T’ BLOCK, JAYANAGAR

BENGALURU-560 041

REPRESENTED BY ITS REGISTAR

2. THE REGISTRAR (EVALUATION)

RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES

4 TH ‘T’ BLOCK, JAYANAGAR

BENGALURU-560 041 ... RESPONDENTS

(BY SRI N.K.RAMESH, ADVOCATE )

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF

The constitution of India praying to direct the R-1 university to award additional marks to the answer given by the petitioner for question No.9 of bio chemistry theory paper-ii as per the answer script at annx-D in the I MBBS examination in the subject of bio chemistry theory paper-ii conducted by the R-1 university in June/July 2015 and direct the R-1 university to refer the answer script of the petitioner in the subject of bio chemistry theory paper-ii in the examination conducted in june/july 2015 to a third examiner and etc.

This writ petition coming on for preliminary hearing in ‘b’ group, this day, the court made the following:

O R D E R

H.G.RAMESH, J. (Oral):

Whether revaluation of an answer script could be ordered in exercise of extraordinary jurisdiction of this Court under Article 226 of the Constitution? This is the question that requires determination in this writ petition.

2. In this writ petition, petitioner, in substance, has sought for revaluation of her answer script in Theory paper 2 of Biochemistry of first year M.B.B.S. examination of Rajiv Gandhi University of Health Sciences.

3. I have heard Sri Ajoy Kumar Patil, learned Counsel appearing for the petitioner and Sri N.K.Ramesh, learned Counsel appearing for the respondents and perused the record.

4. Learned Counsel appearing for the petitioner submitted that as per the procedure, the answer script was valued by two valuers and first valuer has given 2.5 and the second valuer has given zero for question No.9. He submitted that the petitioner got the aforesaid answer script valued by Professor and Head of Department of Bio Chemistry, Bangalore Medical College and he has awarded 2.5 marks. He further submitted that the total marks awarded is less by one mark. In effect, the argument of the petitioner is that the University has awarded 31 marks whereas it ought to have been 32.

5. Learned Counsel for the petitioner submitted that this Court has got power to direct revaluation of an answer script. In support of his submission, he relied on two decisions of the Supreme Court in Sahiti vs. Dr. N.T.R. University of Health Sciences [(2009)1 SCC 599] and in President, Board of Secondary Education v. D.Suvankar [(2007)1 SCC 603]. He referred to the following observations made in Sahiti:

“32. The plea that there is absence of specific provision enabling the Vice-Chancellor to order re-evaluation of the answer scripts and, therefore, the Judgment impugned should not be interfered with, cannot be accepted. Re- evaluation of answer scripts in the absence of specific provision is perfectly legal and permissible. In such cases, what the Court should consider is whether the decision of the educational authority is arbitrary, unreasonable, mala fide and whether the decision contravenes any statutory or binding rule or ordinance and in doing so, the Court should show due regard to the opinion expressed by the authority.

38. There may be several instances wherein re-evaluation of the answer scripts may be required to be ordered and this Court need not make an exhaustive catalogue of the same.

However, if the authorities are of the opinion that re-evaluation of the answer scripts is necessary then the Court would be slow to substitute its own views for that of those who are expert in academic matters”.

He also referred to the following observations made in President, Board of Secondary Education:

“6. Award of marks by an Examiner is to be fair, and considering the fact that re-evaluation is not permissible under the Statute, the Examiner has to be careful, cautious and has a duty to ensure that the answers are properly evaluated. No element of chance or luck should be introduced. An examination is a stepping stone on career advancement of a student. Absence of a provision for re-evaluation cannot be a shield for the Examiner to arbitrarily evaluate the answer script.

That would be against the very concept for which re-evaluation is impermissible”.

6. Sri N.K.Ramesh, learned Counsel for the respondents submitted that unless the valuation is clearly arbitrary, it is not permissible to direct revaluation of an answer script. In support of his submission, he relied on the following decisions:

 (i) Pranshu Indurkhya vs. State of M.P.  (AIR 2005 Madhya Pradesh 152)

 (ii) C.Jagadiswaran vs. Vice-Chancellor, rendered by Madurai Bench of the Madras High Court on 1 April 2014 [W.P. (MD) No.172 of 2014]

 (iii) Sanchit Bansal v. Joint Admission Board  [(2012)1 SCC 157]

7. I have examined the matter in the light of the decisions referred to by the learned Counsel for the parties.

When revaluation may be ordered is explained by a Division Bench of the Madhya Pradesh High Court in Pranshu Indurkhya vs. State of M.P. [AIR 2005 Madhya Pradesh 152]. It is useful to extract the following principles laid down therein relating to revaluation:

“7. The principles in regard to revaluation may therefore be summarised thus:

(a) A student has no right to seek revaluation of an answer script unless the rules governing the examination specifically provide for revaluation. A provision for 'scrutiny' or 'retotalling' of marks or 'rechecking the results' in the Rules does not entitle a student to seek re-valuation.

(b) Where the rules do not provide for revaluation, the High Court will not normally direct the production of the answer scripts for its scrutiny or order revaluation. But in rare and exceptional cases where mala fides or tampering is made out, or where injustice has been caused on account of gross negligence, the Court may direct revaluation in exercise of its jurisdiction under Article 226 of the Constitution.

(c) Ascertainment of mala fides and tampering depends on facts of the case and for that purpose, if necessary, the answer script may be summoned.

(d) Ascertainment of "gross negligence resulting in injustice" is a more difficult exercise. A student who has consistently secured very high marks in a subject in the last few years examinations, is shown to have failed in such subject, the Court may consider it to be prima facie evidence of such negligence and call for the answer scripts.

(The mere fact that a student feels that he deserved more marks or alleges negligence, cannot be a ground to call for answer scripts). On securing the answer-script, the Court may examine it or take the assistance of a qualified teacher to examine it. If the Court finds any gross negligence resulting in injustice which shocks its judicial conscience, it may direct re-valuation.

(e) But change in marks on account of perceptional differences in assessment cannot be a ground for revaluation.

Different examiners may evaluate the same answers differently resulting in lesser or higher marks being awarded. Re-valuation is not to be ordered merely because another valuer is of the view that the marks should have been different. In traditional examinations where the purpose is to test the knowledge, grammar, logic or reasoning, the perceptions about the answers may vary from examiner to examiner. (Of course where the examination is of objective type, where the student is merely to mark 'yes' or 'no', or choose one of the multiple answers, there cannot be any difference in valuation).

(f) While fairness in examinations is impliedly assured by the Board, exactness in valuation in individual cases can neither be assured nor be claimed. Certain margin of human error, over-sight, and perceptional difference is part of the valuation system, where thousands or lacs of answer scripts are evaluated by hundreds or thousands of evaluators.

Therefore, even where the Court secures the answer script and examines it or gets it examined by an independent teacher, re-valuation should not be ordered merely because there is some difference in valuation or because one or two answers have not been valued or have been wrongly valued. To repeat, mala fides, tampering or gross negligence (and not small or negligible errors or perceptional changes) is a condition precedent for ordering re-valuation.”

I am in respectful agreement with the principles extracted above.

8. In my opinion, even where the rules do not provide for revaluation, the High Court may direct revaluation in exercise of its extraordinary jurisdiction under Article 226 of the Constitution in rare and exceptional cases where mala fides or tampering or gross negligence in valuation is made out. However, revaluation is not to be ordered merely because another valuer is of the view that the marks should have been different.

9. As stated above, the grievance of the petitioner is that she should have been awarded one mark more. This is no ground for revaluation of the answer script. The writ petition is devoid of merit and it is accordingly dismissed.

 Petition dismissed.

 Sd/-

 JUDGE

KSR

SC held National Consumer Commission can exercise its jurisdiction when either the State Commission or the District Forum failed to exercise their jurisdiction

Lourdes Society Snehanjali Girls Hostel and Anr Vs MS H and R Johnson India Ltd and Ors on 2nd August 2016 in the Supreme Court

Society doing charitable activities for a small amount in return. Can't be considered as "Commercial entity". Held - society is a "Consumer" within the Consumer Protection Act, 1986.

Lourdes Society a charitable institution running a girl’s hostel for the benefit of Adiwasi Children, purchased floor tiles of H.R. Johnson through their agent

The said tiles, gradually developed black and white spots. The appellant society complained in this regard to the company as well as to their agent. Society then appointed an architect to assess the loss which was assessed at Rs.4,27,712.37. Then appellant society served a legal notice upon the manufacturer H.R.Johnson Co. and called upon them to pay the losses but no response was received then the society filed the Consumer Complaint before the District Forum.

District Forum appointed a Local Commissioner to ascertain manufacturing defects as was being claimed by the society. The District Forum held that the manufacturer committed an unfair trade practice by supplying such defective tiles and held them liable to pay a sum of Rs.2,00,000/- along with interest @9% p.a. to the appellant society.

Aggrieved with this order respondent manufacturer filed appeal before Stat Commission. The State Commission dismissed the Appeal by confirming the order passed by the District Forum.

Respondent manufacturer filed Revision Petition before the National Commission, questioning the validity and correctness of the order passed by the District Forum and the State Commission.

The National Commission reversed the findings of the District Forum and the State Commission by holding that the appellant-Society had failed to establish that it is a consumer within the meaning of Section 2(d) of the Consumer Protection Act, 1986. This order of the National Commission came under challenge before the Apex Court.

The Apex Court concluded that the National Commission had exceeded its jurisdictional power under Section 21 (b) of the Consumer Protection Act, by setting aside the finding of the State Commission affirming the finding of the District Forum which was based on the valid and cogent reasons. The National Commission had to exercise its power under Section 21 only when either the State Commission or the District Forum had failed to exercise their jurisdiction or exercised the jurisdiction when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity.

Apex Court further held that the National Commission had erred in ignoring the Memorandum of Association and byelaws of appellant-Society which shows that it is a charitable institution supporting Tribal girls to pursue their education by providing hostel facilities and thus National Commission had wrongly held that the appellant-Society is a commercial establishment.

With the above said findings, Apex Court allowed the appeal and affirmed the order of the District Forum and State Commission and ordered Respondent – manufacturer to pay the amount awarded by the District Commission along with interest @9% p.a. and costs of Rs.50,000/- to the appellant-Society.

___________________________________________________

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7223 OF 2016

(ARISING OUT OF SLP(C) NO. 36918 OF 2013)

 LOURDES SOCIETY SNEHANJALI GIRLS HOSTEL AND ANR. ……APPELLANTS

Vs.

M/S H & R JOHNSON (INDIA) LTD. & ORS. ……RESPONDENTS

J U D G M E N T

V.GOPALA GOWDA, J.

Leave granted.

2. This civil appeal by special leave is directed against the impugned judgment and order dated 23.09.2013 passed by the National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No. 4047 of 2006 whereby it has allowed the revision petition filed by respondent nos. 1-4 and set aside the order dated 12.10.2006 passed by the Gujarat State Consumer Disputes Redressal Commission, Ahemdabad in Appeal No. 741 of 2006.

3. The brief facts of the case in nutshell are as under:-

The appellant no.1-Lourdes Society Snehanjali Girls Hostel is a society registered under the Societies Registration Act vide society registration no.Guj/525/Surat and also a trust registered, vide its Trust registration no. F/430/Surat. The appellant-Society is a charitable institution running a girls hostel at Surat for the benefit of Adiwasi children. On 02.02.2000, the appellant-Society purchased vitrified glazed floor tiles from respondent no.5 (since deleted from the array of parties vide Court’s order dated 01.04.2015) who was a local agent of respondent no.1-Company for a sum of Rs.4,69,579/-.

The said tiles, after its fixation in the premises of the hostel, gradually developed black and white spots.

The appellant no.1 wrote several letters to respondent no.4 i.e., Sales Executive of respondent no.1-company, informing about the inferior and defective quality of the tiles. Thereafter, the respondent no.5-local agent visited the spot but failed to solve the issue.

4. An architect J.M. Vimawala was appointed by the appellant-Society to assess the damage caused due to defective tiles. The architect assessed the loss to the tune of Rs.4,27,712.37 which included price of the tiles, labour charges, octroi and transportation charges. Thereafter, the appellant-Society served a legal notice dated 12.08.2002 to the respondents making a demand of the said amount but no response was shown by the respondents.

5. The said inaction on the part of the respondents made the appellant-Society to file a Consumer Complaint No. 743 of 2002 against the respondents before the District Consumer Disputes Redressal Forum at Surat (for short “the District Forum”) for claim of the said amount.

6. The District Forum appointed a Court Commissioner to examine and find out the manufacturing defects in the tiles as claimed by the appellant-Society. After examination, the Court Commissioner submitted a report dated 21.09.2004 stating therein that the tiles were having manufacturing defect.

7. The District Forum vide its order dated 31.12.2005 held that the tiles supplied by the respondents had manufacturing defect. The respondents committed an unfair trade practice by supplying such defective tiles. By holding the respondents jointly and severally liable, the District Forum directed the respondents to pay to the appellants a sum of Rs.2,00,000/- along with interest @9% p.a. from the date of complaint i.e., 31.10.2002 till its recovery.

The respondent no.1 was directed to pay the above amount to the appellant within a period of 30 days from the date of order of the District Forum.

8. Being Aggrieved, the respondents filed First Appeal No. 741 of 2006 before Gujarat State Consumer Dispute Redressal Commission, Ahmedabad (for short “the State Commission”) challenging the said order of District Forum urging various grounds.

9. The State Commission dismissed the said First Appeal of the respondents by its order dated 12.10.2006 and confirmed the order passed by the District Forum.

10. Having become unsuccessful before the State Commission, the respondents filed Revision Petition No. 4047 of 2006 before the National Consumer Disputes Redressal Commission, New Delhi (hereinafter referred to as “the National Commission”) questioning the validity and correctness of the order passed by the District Forum and the State Commission.

11. On 12.03.2012, the appellant-Society also made an application being I.A. No.1847 of 2013 in Revision Petition No. 4047 of 2006 to the National Commission for invoking the powers under Sections 14(d) and 14(hb) of the Consumer Protection Act, 1986 and for awarding sufficient amount of compensation in addition to amount already awarded by the District Forum.

12. The National Commission vide its order dated 23.09.2013 reversed the findings of the District Forum and the State Commission holding that the appellant-Society has failed to establish that it is a consumer within the meaning of Section 2(d) of the Consumer Protection Act, 1986.

13. In support of their case, the learned counsel appearing on behalf of both the parties made the following submissions.

Mr. Ashok Panigrahi, the learned counsel on behalf of the appellant-Society contended that the National Commission has erred in coming to the conclusion that the appellant-Society is a commercial establishment and thus, not covered by the definition of the term  ‘consumer’ under Section 2(d) of the Consumer Protection Act, 1986. It was further submitted by him that it is unjustified on the part of the National Commission to hold that the Memorandum of Association and byelaws of the appellant-society which show that it is a charitable institution and not any commercial establishment were not filed before the District Forum but filed at the stage of Revision before the National Commission. It was further submitted by the learned counsel that the District Forum and the State Commission have gone through the registration certificate and Memorandum of Association of the appellant-Society.

14. He further submitted that the National Commission has erred in holding that the case M/s Kusumam Hotels Pvt. Ltd. v. M/s Neycer India Ltd.1 is applicable to the facts and circumstances of the present case.

15. It was further contended by him that both the District Forum as well as the State Commission have held that the appellant-Society cannot be regarded as a commercial establishment. It is completely unjustified on the part of the National Commission to

______________________

1 III (1993) CPJ 333 (NC)

hold that the appellant-Society being a commercial establishment is not a consumer within the meaning of the term ‘consumer’ under Section 2(d) of the Consumer Protection Act, 1986 in complete ignorance of the Memorandum of Association and the byelaws of the appellant-Society.

16. On the contrary, Mr. Sudhir K. Makkar, the learned counsel on behalf of the respondents sought to justify the impugned judgment and order of the National Commission contending that the same is based on sound reasoning without error and therefore, the same need not be interfered with by this Court.

17. It is further contended by him that the District Forum and the State Commission have erred in relying on the report dated 21.09.2004 given by the Court Commissioner as his qualification was not stated in the report. The report was based on visual inspection.

Further, both the District Forum as well as the State Commission have erred in not considering the test certificate produced by respondent no.1 as the same was based on modern tile testing technology in its laboratory. In the absence of expert evidence, it was wrong on the part of the District Forum as well as the State Commission to hold that tiles had manufacturing defect.

18. After hearing the learned counsel for both the parties we come to the following conclusion:

The National Commission has exceeded its jurisdiction in exercising its revisional power under Section 21(b) of the Consumer Protection Act, 1986 by setting aside the concurrent finding of fact recorded by the State Commission in First Appeal No. 741 of 2006 vide its judgment dated 12.10.2006 wherein the finding of fact recorded by the District Forum was affirmed.

19. The facts of the instant case clearly reveal that the National Commission has erred in observing that the appellant-Society is a commercial establishment by completely ignoring the Memorandum of Association and byelaws of the appellant-Society. Both the District Forum as well as the State Commission have rightly held that the appellant-Society is a charitable institution and not a commercial entity. The relevant portion of the order passed by the District Forum reads thus:

“6. ……It is not in dispute that complainants are running girls hostel in the name of Complainant no.1. Commercial purpose is also explained under the provisions of the Act. So far as activities of the complainants are concerned, they are running girls hostel and receive fees from the students. The complainants are not carrying out commercial activities. Purchase of goods namely tiles are for the purpose of their hostel and it cannot be said that tiles is subject matter of their business. Whenever any person purchases goods for carrying out business for commercial or for livelihood then only question regarding purchase of goods or availing any activities from trader or professional arises. The complainants are not carrying on business of purchase from opponents. Otherwise also hostel premises can be constructed and there is no direct relation between commercial activity.

Therefore, the defence of opponents that complainants are carrying on business activities and thereby complainants are not consumer is not acceptable. Hence, we hold that complainants are consumer of opponents and defence of opponents is rejected.”

 (emphasis supplied)

20. The National Commission has erred by applying the decision in M/s Kusumam Hotels Pvt. Ltd. case (supra) in holding that the appellant-Society is not a consumer in terms of the definition under Section 2(d) of the Consumer Protection Act, 1986 as the purchase of tiles and laying in the same in the rooms of the girl’s hostel run by the appellant-Society is clearly not for any commercial purpose. The decision in M/s Kusumam Hotels Pvt. Ltd. case (supra) has no application to the present fact situation for the reason that in the said case complainant was a hotel and the tiles purchased by the hotel were for commercial purpose as the hotel business involves the act of profit making, whereas in the instant case the girl’s hostel in question is run by the appellant-Society as one among its various charitable activities for the benefit of adivasi students. The appellant-Society is supporting adivasi/tribal girls to pursue their education by providing hostel facilities. The expenses for the food and electricity are being paid by the inmates of the hostel. The appellant-Society is maintaining the hostel free of cost and no charges in the form of rent, repairs and maintenance are collected from the inmates. Thus, the appellant-Society cannot be considered as any commercial establishment striving for profit.

21. Further, the National Commission while passing the impugned order has ignored certain facts which throws light on callous attitude on the part of the respondents viz., when the defect in the tiles were brought to the notice of the respondents by sending various letters, there was no action on their part.

Later a local agent on behalf of the respondent no.1-Company visited the premises of the girl’s hostel and verified that the said tiles were defective and damaged. However, no proper attention was paid by the respondents towards the issue. Further, to assess the damage caused to the appellant-Society by the use of the said defective tiles, a registered architect and interior designer, J.M. Vimawala was hired by the appellant-Society, who in his report declared the tiles to be defective and assessed the damage to the appellant-Society to the tune of Rs.4,27,712.37.

Thereafter, the appellant-Society made a demand of the said amount as damages from the respondents vide legal notice dated 12.08.2002. But the respondents did not pay any heed to the said notice as well. Because of such irresponsible and indifferent attitude on the part of the respondents, the appellant-Society was compelled to file Consumer Complaint No. 743 of 2002 before the District Forum.

22. The District Forum, after appreciating the pleadings and evidence on record has rightly awarded Rs. 2 lakhs as damages to the appellant-Society towards defective tiles supplied by the respondents along with compensation towards mental harassment and cost of present proceedings with interest @9% p.a. from the date of complaint till its recovery. In concurring with the findings of the District Forum, the State Commission, after proper re-appreciation of the facts and evidence on record has rightly exercised its jurisdiction by dismissing the appeal of the respondents. The National Commission should not have interfered with the concurrent findings of fact recorded in the judgment impugned before it particularly having regard to the nature of the jurisdiction conferred upon it by Section 21 of the Consumer Protection Act, 1986. Section 21 of the aforesaid Act reads thus:

“21. Jurisdiction of the National Commission.—

Subject to the other provisions of this Act, the National Commission shall have jurisdiction—

(a) to entertain—

(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees one crore; and

(ii) appeals against the orders of any State Commission; and

(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.”

23. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons. The National Commission has reversed the order passed by the State Commission by wrongly applying the decision of M/s Kusumam Hotels Pvt. Ltd. case (supra) to the set of facts in the present case. In the said case, the complainant was a hotel, it was considered to be a commercial entity and therefore, it was kept out of the purview of the definition of ‘consumer’ under Section 2(d) of the Consumer Protection Act, 1986. However, the National Commission has failed to appreciate the fact that in the present case, the appellant-Society is not a commercial establishment rather a registered society helping the adivasi students in their education by providing hostel facilities. The charges, if any, for accommodation in the hostel are for maintaining the hostel and not for making profit. Thus, the appellant-Society is consumer within the meaning of the term ‘consumer’ under Section 2(d) of the Consumer Protection Act, 1986. The National Commission has erroneously accepted the contention urged on behalf of the respondents in the revisional proceedings that supply of tiles to the appellant-Society by respondent no. 1 through its local agent is for commercial purpose. The said finding is based on the decision in M/s Kusumam Hotels Pvt. Ltd. case (supra), which case absolutely has no application to the fact situation.

24. Therefore, the concurrent finding of fact recorded by the District and the State Commission has been erroneously interfered with by the National Commission by passing the impugned order, which is liable to be set aside. For the aforesaid reasons, the appeal of the appellant-Society must succeed.

25. For the reasons stated supra this appeal is allowed, the impugned order of the National Commission is hereby set aside and we restore the order of the District Forum which is affirmed by the State Commission. The matter has been under litigation for the last fourteen years, we direct the respondents to pay or deposit the amount so awarded by the District Forum along with interest @9% p.a. within six weeks from the date of receipt of the copy of this judgment.

The costs of Rs.50,000/- of these proceedings are also awarded in favour of the appellant-Society.

…………………………CJI

[T.S. THAKUR]

……………………………J.

[V. GOPALA GOWDA]

……………………………J.

[R. BANUMATHI]

New Delhi, 2nd August, 2016