State Consumer Disputes Redressal Commission
Delhi Development Authority vs Smt. Usha Kiran on 22 October, 2013
IN THE STATE COMMISSION:DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 22.10.2013 First Appeal No.2013/1039 (Arising out of Order dated 16.08.2013 passed by the District Consumer Forum-II, Udyog Sadan, Qutub Institutional Area, New Delhi in Complaint Case No.1087/2007) Delhi Development Authority. Appellant /Opposite Party Vikas Sadan, INA through Ms. Arti Bansal New Delhi advocate. Versus Smt. Usha Kiran . Respondent/Complainant W/o Sh. N.C. Garg Sunder Bhawan, P. Paras Ram Rohtak 124001, Haryana CORAM Justice Barkat Ali Zaidi President Ms. Salma Noor Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice Barkat Ali Zaidi, President
1. In a complaint case pending before District Forum-II, the legal heirs of the deceased complainant Smt. Usha Kiran filed an application to substitute their names in place of the deceased complainant, which the District Forum allowed vide order dated 16.08.2013.
2. It is against this order of substitution, the appellant/OP DDA has come in appeal before this Commission.
3. We have Ms. Arti Bansal, counsel for the appellant/OP, at the admission stage itself, as there is no need to hear the respondent in this appeal.
4. The grounds, on basis of which the appellant assailed the order of substitution, may be reiterated below for easy understanding the grouse of the appellant.
A. Because the impugned order is bad in law and on facts and the same is liable to be set aside and quashed.
B. Because the impugned order is passed on conjectures and surmises and thus deserve to be dismissed out-rightly.
C. Because the Ld. District Forum has failed to appreciate that the counsel for the appellant was present in pre lunch period. Even then the Forum observed that no one present on behalf of the OP.
D. Because the Ld. District Forum grossly erred in allowing the application of impleading the legal heirs of the complainant/respondent after her death. The claim of un-liquidated damages is a mere right to sue which cannot be transferred.
E. Because the Ld. District Forum failed to appreciate the law laid down by the National Commission in the judgment of this Commission in Janak Kumar Vs Dr. Balwinder Kaur Nagpal & Anr. II(2003) CPJ 28(NC), contends that the claim for unliquidated damages for torturous liability being a mere right to sue could not be transferred as the personal action dies with the death of the claimant and the complaint could not be continued by his legal heirs.
In the judgment passed by the National Commission in RP No.3305/2007 titled Sh. Laxmi Narain Vs Tirath Ram Shah Hospital and Anr. It has been held:
that claim for un-liquidated damages for any torturous liability is a mere right to sue which cannot be transferred, that personal action dies with the death of the claimant. The facts of the present case are similar to the fact involved in Janak Kumaris case (supra). In the aforesaid case the complainant had died during the pendency of the complaint. Question arose as to whether the complaint filed by the original complainant could be continued by the legal representatives of the complainant. This Commission answered this question in negative and held that the complaint filed by the complainant could not be continued by is legal representative as personal action dies with the complainant, that claim of un-liquidated damages is a mere right to sue which cannot be transferred.
Since we are of the opinion that the legal representative of the petitioner could not continue with the complaint, the question of enhancement of compensation does not arise. Revision petition is dismissed.
F. Because the Ld. District Forum grossly erred where the relief of allotment of the flat has already been rejected by the appellant vide letter dated 04.10.2006.
G. Because the Ld. District Forum grossly erred in allowing the application of the complainant/respondent and bring the legal heirs on record. The right of the complainant could not be continued by his legal representative as personal action dies with the complainant/respondent.
H. Because the impugned order is contrary to the law laid down in the pronouncement of the Honble National Commission and Honble Supreme Court.
I. That the order passed by the Ld. District Forum is otherwise also contrary to law, against the weigh of evidence and against the principle of justice, equity and good conscience.
5. What, all these grounds cumulatively mean and indicate is that the claim for un-liquidated damages for torturous liability being a mere right to sue since cannot be transferred and the right to sue does not survive to the LRs of the deceased complainant.
6. We are inclined to disagree with the contention s of the appellant at this stage for the reason that the question before the Forum while deciding the application for substitution was only that, whether the applicants respondents are the legal heirs and representatives o the deceased complainant and if so whether their names should be brought on record in place of the deceased. The right to sue will survive to them or they will be entitled to claim the relief in the compliant sought by the deceased complainant as legal heirs is a question to be decided at the time of decision.
7. We therefore find no illegality or infirmity in the impugned order. Appeal filed by the appellant is dismissed in limine.
8. A copy of this order be provided to the parties as per rule, whereas a copy of this order be sent to District Forum-II to place it on original record of complaint case No.1087/2007 and for information. The file be consigned thereafter to Record room.
Announced on 22nd day of October 2013.
(Justice Barkat Ali Zaidi) President (Salma Noor) Member Tri