Friday 28 June 2013

Landlord & Tenant Related Problems & Solutions

Q1. I filed an eviction petition on the ground of bona fide requirement under the Delhi Rent Control Act. Since, I was not too well I did not appear for evidence before the Court and instead I got the examination of my Power of Attorney who gave evidence before the court. Is such an evidence proper in a case of bona fide requirement?
A. The best person to prove bona fide requirement of a landlord is the landlord itself. In case you could not appear before the court for some extreme reasons, you should have got yourself examined on commission. The court generally takes an adverse inference in case the landlord himself does not appear for leading evidence for a bona fide requirement. It would be appropriate that even now you should filed an application for your own evidence in the court and you should not rely upon the evidence given by your Power of Attorney.
Q2. What are the essential requirements in case a widow wants to file an eviction petition for getting back her tenancy let-out at a monthly rent of Rs. 1,500/-?
A. The essential things required for filing an eviction petition by a widow are that she should be the land lady of the premises and the premises should be required by her for her own residence. The said apart nothing else is required to be proved in such a case.
Q3. I have instituted a petition for bona fide requirement under the Delhi Rent Control Act. In the said petition I am claiming that I have a grown up son of 18 years of age and I require one separate room for that son. Is such a demand of requirement of a separate room justified?
A. Yes, such a demand is justified. One single room is required for the grown up child who should be free to use and live in that room in the manner he likes and should be free to devote his time to his studies without disturbance. The ground is justified and bone fide requirement can be proved on this ground.
Q4. How can a premises be sublet by a tenant?
A. Under law any subletting by a tenant has to done by a written consent given by the landlord, who has let-out the premises to the tenant. In case there is no written consent to the tenant by the landlord to sublet, any subletting done by the tenant is illegal and in such an eventuality the tenant should be liable for eviction from the premises.
Q5. Can a suit for eviction be filed against the tenant by the landlord, if the monthly rent is Rs. 2,500/- ?
A. Under the Delhi Rent Control Act, no suit for eviction of a tenant can be filed. Section 50 of the Delhi Rent Control Act, clearly bars the jurisdiction of a civil court. For evicting a tenant a petition can be filed only under the grounds mentioned in the Delhi Rent Control Act, before a Rent Controller
Q6. I have filed a case against my tenant in which a question has arisen about the difference between ‘tenant at sufferance’ and ‘tenant by holding over’. Can you enlighten me on the same.
A. If after expiry of the period of tenancy or after his determination a tenant continues in possession without landlord’s consent, the said person (tenant) holds the property as tenant at sufferance having no interest. For his ejectment no notice is necessary. But a tenant by holding over is different. To be tenant by holding over he is to continue in possession after the efflux of time with the consent express or implied of the owner. It is a creature to bilateral consensual act. It is not created by unilateral intendment.
Q7. Is it correct that whenever the rate of rent is altered, a fresh tenancy comes into being ? If a landlord accepts enhanced rent during the period of the tenancy, does the earlier tenancy comes to an end and a new tenancy begins. What does law say on this ?
A. It is not correct to say that whenever a rate of rent is altered, a fresh tenancy come into being and the old tenancy stands surrendered by implication. Landlord accepting an enhanced rent during the terms of tenancy say at 18th year when the tenancy was for 20 years, it cannot be said that the earlier lease has not been surrendered by implication. The old lease subsists and the end of the term the tenancy comes to an end by efflux of time.
Q8. I am the co-owner of a property which is on rent. The tenant is not paying the rent for the last four months, but the other co-owners of the property are not interested in filing any case for the recovery of the arrears. Can I file a case for recovery of my share of the arrears of rent ?
A. In a Co-owner’s suit for recovery of proportionate rent and splitting up of tenancy, it is open to a co-owner to pray for a decree for his share of arrears of rent by filing a suit on the basis of unified and integral tenancy and without making any effort to split up the same. It cannot be said that a co-owner must sue for the entire arrears of rent and if he does not do so he cannot maintain an action.
Q9. A Notice by predecessor of interest ejectment suit by successor A notice to terminate tenancy was issued by the Estate Manager of the Bombay Port Trust (constituted under the Bombay Port Trust Act 1879) on behalf of its Board of Trustees to the tenant occupying the building owned by the Port Trust. Before the expiry of notice period there was a change in law and the successor of Board to Trustees instituted the ejectment suit. Is such a suit legal and valid in law ?
A. The right to eject tenant acquired by the erstwhile Board of Trustees acquired by giving notice to quit ensured for the benefit of the successor of the Board of Trustees. Therefore the suit for ejectment filed by the successor Board was competent. It is no doubt true that per se Section 109 of the Transfer of Property Act does not apply to the facts of the instant case. It contemplates transfer of lessor’s right inter vivos. But when right, title and interest in immovable property stand transferred by operation of law, the spirit behind s. 109 per force would apply and successor in interest would be entitled to the rights of the predecessor.
Q10. I let out one floor of my house to a tenant but the lease was not registered. have been accepting rent from him. Is the lease for the period mentioned in the lease deed. Is a notice necessary for evicting my tenant ?
A. When a tenant continues in possession after expiry of the term contemplated on an unregistered deed of lease, and pays rent, he is a tenant by holding over from month to month, the unregistered lease deed being inadmissible and term of lease being not a collateral purpose. For his eviction notice under Section 106 of the Transfer of Property Act Act is mandatory.
Q11. What is the difference between a joint tenant and tenants in common ?
A. The basis distinction between joint tenants and tenants in common is that in case of joint tenants there is unity of title and possession, while in the case of tenants in common, though there is a unity of possession there no unity of title.
Q12. I have filed a suit for vacation of my rented property. The tenant has challenge the validity of the notice I served him under Section 106 of the Transfer of Property Act. What is the legal requirement for such a notice ?
A. What s. 106 requires is that a lease from month to month is terminable on the part of either the lessor or the lessee by 15 days’ notice expiring with the end of a month of the tenancy. A legal termination of the monthly tenancy thus requires two conditions to be fulfilled viz. That there must be a notice terminating the tenancy giving 15 day’s notice and it must be expire with the end of the tenancy month. A notice giving mere 15 days’ time by itself will not answer the requirement of s. 106 but it must also indicate that the 15 days’ period must expire with the end of the tenancy month.
Q13. My uncle had taken a property on rent where he is carrying on certain manufacturing of goods. The landlord has served a notice for ejectment on the basis that the property was let out for residential and not manufacturing purpose. What is required to be shown by us to prove that the tenancy was for manufacturing purpose ?
A. The tests for determining if a lease is for manufacturing purpose are (1) that it must be proved that a certain commodity was produced, (2) that the process of production must involve either labour or machinery, (3) that the end product which comes into existence after the manufacturing process is complete, should have a different name and should be put to a different use. In other words the commodity so transformed as to lose its original character.
Q14. My father owned a premises which were on rent with a tenant. During the tenancy since my father required some money, the property was mortgage to the tenant. Now my father has repaid the amount to the tenant. Would it mean that the tenancy is automatically surrendered by the tenant ?
A. When a landlord mortgages the premises to his tenant, then no redemption of the mortgage the landlord does not ipso facto get the right to eject the tenant. When mortgage is executed the question whether the tenancy stood impliedly surrendered or not is the yardstick. If it is, the landlord gets the right to evict. There is no question of merger of the two rights, for neither of them is a higher or lesser estate.
Q15. My Landlord is disputing that my tenancy is nit a lease but a license. There is no written agreement between us. How does one differentiate whether it is a lease for a license?
A. The crucial test in each case is whether the instrument is intended to create or not to create an interest in the property the subject matter of the agreement. If it is in fact intended to create an interest in the property it is a lease, if it is does not it is a license. In determining whether the agreement creates a lease or a license the test of exclusive possession though not decisive is of significance.
Q16. A was inducted as a tenant in the premises, but the rent was always paid by the firm in which A was a partner. Is it not that the partnership firm becomes a tenant under such circumstances ?
A. A relationship of landlord and tenant is created by contract. Mere payment of rent does not necessarily establish relationship of landlord and tenant. A was found to be the tenant, the fact that a firm made payment of rent on behalf of A who was partner of that firm would not make the firm a tenant.
Q17. I am living in a rented premises with disputed ownership the pay monthly rent to “B’ Is mere acceptance of rent sufficient to make `B’ the landlord?
A. Landlord is the person who has the right to receive rent. Mere acceptance of rent does not make `B’ the landlord unless he has the legal right to receive the rent.
Q18. What is a Standard rent? How is standard rent fixed? When can I make an application for fixation of standard rent?
A. Standard rent is the rent which the land lord is expected to receive from the tenant. Standard rent is only provided if the property is under Rent Control Legislation . Under Section 6 the Standard rent to be fixed. Under the provisions of Delhi Rent Control Act the application for the fixation of Standard Rent Act can be moved within two years of the creation of the tenancy. Delhi Rent Control Act will be applicable only if a the rent is less than Rs. 3,500/-
Q19. I have sub-let the house where I am presently living. Does it constitute a ground for eviction?
A. If the rent is less than Rs. 3,500 then subletting a one of the grounds for eviction u/s 4 ( d) Rent Control Act. If the rent is more than Rs. 3,500 then there is no formal condition agreed upon between the landlord & tenant about the subletting in that eventuality . The landlord has the right to make the lease on account of subletting. Under the termination of lease the landlord has the ground to file a suit for possession.
Q20. I am a tenant under a valid lease agreement. I have not been receiving electricity bills for the meter installed in the premises under my occupation. However, the said meter is in the name of my landlord. Suddenly, one day NDMC officials informed me that my meter is to be disconnected on account on non-payment of bills. Can I seek any relief from the Court as the meter is in the name of my landlord?
A. There is no privity between tenant and the NDMC and as such no relationship could be established between them . It is better to obtain duplicate bills from the NDMC and pay the same to avoid disconnection.
Q21. We are tenant of a house . We have not given rent for the month of March & April we are old tenant since 1994. We don’t have the new agreement & our landlord want us to vacate the house. We are already fighting in the court. Can he take us out without any notice? Can we stay there for longer?
A. You have not specified in your question as to what is the monthly rent of the premises and as to whether the Agreement under which it was taken was in writing and was registered and what was the duration of the tenancy. Further you have also not mentioned about the nature of the litigation pending in the Court. In any event in case the monthly rent is below Rs. 3,500/-, the provisions of Delhi Rent Control Act, would be applicable, wherein you can be evicted only under certain specified grounds which includes not payment of rent , subletting of the premises, bonafide requirement of the landlord etc. In case the monthly rent is above Rs. 3,500/- and agreement is registered (if over one year) then the terms of the lease would prevail. The landlord under such circumstances is liable to serve you with a notice under Section 106 of the Transfer of Property Act giving 15 days time on the expiry of the tenancy month for terminating the tenancy. Thereafter, he has to file a suit for ejectment which will be tried by the Court. The landlord cannot forcibly evict you from the premises and the procedure before the Court will take few years to be decided. The strength of your case can only be told on having details of the case. You should however, pay the rent to the landlord either by sending the same by money-order or by depositing the same in court in the litigation already pending.
Q22. I am a tenant of 2 separate tenements, one shop and one float, but I have only one rent receipt for both. The entire building is now being redeveloped by a private developer who says that since I have only one rent receipt I can get only one tenement viz., a flat of 750 sq. ft. How do I verify the user (residential/non residential)?
A. If you have sufficient proof to establish that two properties, i.e. one shop and one flat, are absolutely separate from each other, then it will be taken as two different properties. This can be proved by way of evidence of various persons who have visited the shop and the flat. As you have stated that there is only one receipt, the question is whether in the receipt two rents are mentioned or a single rent is mentioned ? If two rents are mentioned in a single receipt that by itself is a proof that there are two different properties. If there is single rent mentioned in the rent receipt, then it has to be seen if two properties are anywhere indicated in the receipt, which will help you to prove your case. Further, whether the shop is separable from the residential portion, the same is also a fact to prove that there are two different properties, i.e. a shop and a flat. In your case the different users, itself proves that there are two separate properties and you can always claim compensation for two properties.
Q23. “Sufficient cause”, as required by rent controller for non deposit of rent within statutory period, if shown by the tenant that he could not deposit the same as advocate did not take necessary steps and he later changed the advocate and also informed the controller his willingness to pay the arrears, if no affidavit of the previous advocate was submitted but Rojnama entries do suggest that on 2 previous occasion the advocate was not personally present and tenant himself had to submit the Vakalatnama of his advocate, can the controller rule that tenant has not shown sufficient causes?
A. While construing as to what is a ‘sufficient cause’, the courts normally look into various aspects of the case. The matter is solely at the discretion of the court concerned and if a good cause is shown, the courts normally condone any irregularity or default by a party. It is but obvious that in the situation mentioned by you, the previous advocate who has defaulted in depositing the arrears of rent, would not give his affidavit admitting his default. In such case you should file your own affidavit and further bring the proofs which would show that you had given the amount of arrears to the advocate for being deposited and it was on account of the default of the advocates that the needful could not be done. If the same is done the court would construe the same as a sufficient cause.
Q24. “Sufficient cause” , as required by rent controller for non deposit of rent within statutory period, if shown by the tenant that he could not deposit the same on medical ground i.e. suffering slip disc and submits also medical certificate from Government hospital and also from specialist private doctor, can the rent controller reject the certificates outright as the tenant was personally present in the court on prior occasion to file Vakalatnama of advocate where the matter was adjourned to a further date, although the tenant has pleaded that he was present in the court disregarding medical advise and with great difficulty as his advocate was not present in the court on that day?
A. The ground mentioned by you in the query for being construed as a sufficient cause, may not hold good before the court. The same might be rejected on the ground that if you are unwell, some other person could have been deputed by you to deposit the arrears or to engage an advocate to do the needful. The medical certificate may just help you to seek condonation of delay in depositing the arrears only for a few days, but not for any longer time. Further, if the tenant was present in the court and the order was passed and the tenant was aware of the same, it is immaterial that he was present there against the medical advice. If he could be present to attend the hearing, there can be no justification for not depositing the arrears on the said date.
Q25. We had given one floor of our house on rental basis for two years. Our tenant had neither given rent from past one & half years nor he is willing to vacate it. Now tenancy time of 2 years is going to over in this month. We had also made a simple agreement on affidavit witnessed by property dealer BUT NOT A LEGAL ONE BY COURT. WHAT SHOULD I PROCEED ?
A. You should issue legal notice to the tenant for the non payment of rent and also terminate the tenancy by way of notice, which should be of 15 days expiring at the end of the tenancy month. After the expiry of notice period, if the rent is more than Rs. 3,500/- p.m. you can file the suit for recovery of possession along with arrears of rent. You can also file an application for deposit of future rent in the court, If the rent is below Rs. 3,500/- p.m., you can file the petition for eviction on non payment of rent. If it is a newly constructed property and the letting is first letting then you can file the suit for possession irrespective of rate of rent. In such a case the Rent Act is not applicable.
Q26. During pendency of eviction proceedings if there are arrears of rent should the controller direct the tenant to pay such arrears if the tenant wants to contest further proceedings?
A. If the eviction petition is on the ground of non payment of rent then the Rent Controller is under duty to pass an order for deposit of rent u/s 15 (1) of Delhi Rent Control Act. If the eviction petition is on any other ground then you have to make an application under Section 15 (2) of Delhi Rent Control Act for direction to the tenant to deposit the rent. If no rent is deposited as per order of the court, the court has the right to strike off the defense of the tenant.
Q27. What do the term “sufficient cause” and bonafide payment mean?
A. The term “sufficient cause” means a good and reasonable cause which will satisfy the court about the conduct of a person being genuine and “bonafide payment” means payment tendered genuinely and in good faith generally with the actual belief that the person to whom payment is being made is the actual owner or has valid right and title tot the particular thing/property.
Q28. What are the grounds on which delay can be condoned for non deposit of rent within the statutory time?
A. As such there are no written grounds for condonation of delay for deposit of rent. U/Sec, 15(7) of Delhi Rent Control Act., “Sufficient Cause” is the only ground which further depends from to facts of the case and the Court may if convinced, condone such delay.
Q29. What should I do to make sure that if I rent my property to someone, as to make it safe. The rent would be around Rs.15,000/- per month.
A. The Delhi Rent Control Act, 1988 was primarily in acted to safeguard the interest of the tenant . However after the amendment made in the Delhi Rent Control Act, in the 1988 the provisions was made that in case the tenancy is over Rs. 3,500/-, the provisions of the Delhi Rent Control Act, 1958 would not to be applicable. In the eventuality the person is governed by the normal loss relating to the contract between the party and in a tenancy said law is defined under the Transfer of Property Act. There can be no provision or term in a lease deed which can secured you 100%. However the violating of the property if the would be appropriating better if the rent is kept above Rs. 3,500/-, so that the tenant is not entitled to the protection under Delhi Rent Control Act. If the lease is to be executed for a more than a period, the same is bound under law to be register under Indian Registration Act. and if your are executing a lease over one year you should get the register otherwise the terms of the lease cannot be led as evidence in the court . Even if you write all the request terms, the tenant can still refused to vacant at the end of the tenancy in which eventuality you will have no option but to proceed to the court for eviction of the tenant which normally take a few years, however the precaution which can be taken if that is a good amount can be kept as security and further a clause should be incorporated in lease deed specifying a huge amount as damages in the even talk the tenant willing to vacate the premises.
Q30. If premises are rented to a partnership firm and subsequently the firm is dissolved and the 2 partners continue to occupy the premises for their individual businesses, if the landlord files eviction proceedings against only 1 partner and manages to get a decree of eviction, is the other person also bound by that decree and in case he is not can he obtain a stay from the executing court or what are the other options for him?
A.   If the decree is against the one partner then the partner who had been left, has the right to be heard and he may get the stay from the executing court. In your case if the landlord had made the firm also a party and there is a decree against the firm in that case the decree against the firm means decree against all the partners.
Source: vakilno1.com


Wednesday 19 June 2013

What do you understand by Arrest? How is an arrest made?

What do you understand by Arrest? How is an arrest made? When can the police arrest a person without an order from a magistrate and/or without a warrant? Explain the rights of an arrested person. [Right to know the grounds of arrest - Art 22(1), Sec 50, 50(A), Right to consult and to be defended by legal practitioner of his choice - Art 22(1), Sec 303, Right to legal aid - Art 21, Sec 304, Right to bail Sec 50(2), Right to be produced before nearest magistrate within 24 hrs - Art 22(2) Sec 56, 57, Right not to be detained in custody beyond 24 hrs - Art 22(2) Sec 57, 167, Right to be examined by medical practitioner]  


Arrest means apprehension of a person by legal authority so as to cause deprivation of his liberty. Thus, after arrest, a person's liberty is in control of the arrester. Arrest is an important tool for bringing an accused before the court as well as to prevent a crime or prevent a person suspected of doing crime from running away from the law. Cr P C contemplates two types of arrests - an arrest that is made for the execution of a warrant issued by a magistrate and an arrest that is made without any warrant but in accordance with some legal provision that permits arrest.

Section 41 to 44
 contain provisions that govern the arrest of a person by police and private citizens, while Section 46 describes how an arrest is a made.

(Note - Arrest in case of Warrant is discussed in another question.)

Arrest without warrant
There are situations when a person may be arrested by a police officer, a magistrate or even private citizen without a warrant. These are described in Section 41, 42, 43, and 44 as follows -

Arrest by Police - Section 41. When police may arrest without warrant (CIPSODOBO)
(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person -

(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or
(b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or
(I) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

(2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in section 109 or section 110.

In the case of Joginder Kumar vs State of UP, CrLJ, 1994, it was held that no arrest can be made merely because it is lawful to do so. There must be a justifiable reason to arrest. Further, in State vs Bhera, CrLJ, 1997, it was held that the "reasonable suspicion" and "creditable information" must relate to definite averments which must be considered by the Police Officer himself before he arrests the person.


Section 42 allows a police officer to arrest a person for a non-cognizable offence, if he refuses to give his name and residence.  As per Section 42(1),  when any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.
However, as per sub clause (2), the person must be released when the true name and residence of such person have been ascertained. He may be required to execute a bond, with or without sureties, to appear before a Magistrate if necessary.

Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India.
Further,  as per sub clause (3), should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction.


Arrest by Private person
Even private persons are empowered to arrest a person for protection of peace in certain situations. This is important because police cannot be present at every nook and corner and it is up to private citizens to protect the society from disruptive elements or criminals. As per section 43(1),  any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station. Thus, if a person is drunk and is committing assault on others, he may be rightly arrested by any citizen and taken to the nearest police station.

However, it is important to note that this power can be exercised only when the person making an arrest is under a bona fide impression that a non-bailable and cognizable office is being committed in his presence. One does not have a right to arrest on mere suspicion or on mere opinion that an offence has been committed.

Procedure on arrest by private person -
As mentioned above, the private person must take the arrested person to the police officer or police station without any reasonable delay. If he keeps the person in his own custody, he will be guilty of wrongful confinement as given in Section 342 of IPC.
As per section 43(2), If there is reason to believe that such person comes under the provisions of section 41, a police officer shall re-arrest him. Further, as per section 43(3), if there is reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.

A new provision has been incorporated as Section 50A, which makes it obligatory for the police officer or any other person making an arrest to give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information. Further,  the police officer shall inform the arrested person of his rights under subsection as soon as he is brought to the police station. He must make an entry of the fact as to who has been informed of the arrest of such person in a book to be kept in the police station in such form as may be prescribed in this behalf by the State Government. It is the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of this section has been complied with in respect of such arrested person.

Arrest by Magistrate
As per Section 44(1), when any offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody. Further, (2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.

Important thing to note here is that magistrates have wider power than private citizen. A magistrate can arrest on the ground of any offence and not only on cognizable offence. As held in the case of Swami Hariharanand Saraswati vs Jailer I/C Dist. Varanasi, AIR 1954, the arrested person must be produced before another magistrate within 24 hours, otherwise his detention will be illegal.

Arrest how made - 

Section 46 describes the way in which an arrest is actually made. As per Section 46(1), unless the person being arrested consents to the submission to custody by words or actions, the arrester shall actually touch or confine the body of the person to be arrested.  Since arrest is a restraint on the liberty of the person, it is necessary for the person being arrested to either submit to custody or the arrester must touch and confine his body. Mere oral declaration of arrest by the arrester without getting submission to custody or physical touching to confine the body will not amount to arrest. The submission to custody may be by express words or by action. For example, as held in the case of  Bharosa Ramdayal vs Emperor AIR 1941, if a person makes a statement to the police accusing himself of committing an offence, he would be considered to have submitted to the custody of the police officer. Similarly, if the accused proceeds towards the police station as directed by the police officer, he has submitted to the custody. In such cases, physical contact is not required. In case of Birendra Kumar Rai vs Union of India, CrLJ, 1992, it was held that arrest need not be by handcuffing the person, and it can also be complete by spoken words if the person submits to custody.

Section 46(2) If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest. Thus, if the person tries to runaway, the police officer can take actions to prevent his escape and in doing so, he can use physical force to immobilize the accused.  However, as per Section 46(3), there is no right to cause the death of the person who is not accused of an offence punishable with death or with imprisonment for life, while arresting that person. Further, as per Section 49, an arrested person must not be subjected to more restraint than is necessary to prevent him from escaping.

Due to concerns of violation of the rights of women, a new provision was inserted in Section 46(4) that forbids the arrest of women after sunset and before sunrise, except in exceptional circumstances, in which case the arrest can be done by a woman police officer after making a written report and obtaining a prior permission from the concerned Judicial Magistrate of First class.

In Kultej Singh vs Circle Inspector of Police, 1992, it was held that keeping a person in the police station or confining the movement of the person in the precincts of the police station amounts to arrest of the person.


Rights of an Arrested person (GBMLLIM)

Cr P C  gives wide powers to the police for arresting a person. Such powers without appropriate safeguards for the arrested person will be harmful for the society. To ensure that this power is not used arbitrarily, several restraints have been put on it, which, indirectly, can be seen as recognition of the rights of a person being arrested.  Further, once arrested, a person is already at a disadvantage because of his lack of freedom and so he cannot take appropriate steps to defend himself. Thus, to meet the needs of "fair trial", several provisions are given in CrPC, that give specific rights to an arrested person.  These rights can be described as follows -

1. Right to know the grounds of arrest - Section 50(1) - According this provision, every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.
Similarly, when a subordinate officer is deputed by a senior police officer to arrest a person under Section 55, the subordinate officer must notify the person to be arrested of the substance of the written order given by the senior officer, which clearly specifes the offence for which he is being arrested. The same provision exists in case of an arrest made under a warrant in Section 75. In this case, the police officer or any person making arrest under warrat must notify the substance of the warrant to the person being arrested and if required, must show the warrant. As held in Satish Chandra Rai vs Jodu Nandan Singh, ILR 26 Cal 748, if the substance of the warrant is not notified, the arrest would be unlawful.

In Udaybhan Shuki vs State of UP 1999 CrLJ, All HC held that right to be notified of grounds of arrest is a precious right of the arrested person. This allows him to move the proper court for bail, make a writ petition for habeas corpus, or make appropriate arrangements for his defence.

This right is also a fundamental right given by the Constitution in Art 22(1), which says, "No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.". It embodies two distinc rights - the right to be told of the grounds of arrest and the right to consult a legal practioner of his choice. The second right of consulting a legal practitioner of his choice actually depends on the first right of being told about the grounds of arrest. If the person doesn't know why he is being arrested, he cannot consult a legal practioner meaningfully. In Harikishan vs State of Maharashtra AIR 1962, SC held that the grounds of arrest must be communicated to the person in the language that he understands otherwise it would not amount to sufficient compliance of the constitutional requirement.

2. Right to be informed of the provision for bail - Section 50(2) - Some offences that are not very serious do not require the offender to be kept in custody. For such offences, Cr P C allows the offender to ask for bail as a matter of right. However, not every person knows about Cr P C and so they cannot know that they can get bail immediately.  Thus, Section 50(2), provides that where a police officer arrests any person other than a person accused of a non-bailable offence without warrant, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

3. Right to be taken to magistrate without delay - Holding a person in custody without first proving that the person is guilty is a violation of human rights and is completely unfair. At the same time, holding a person in custody is necessary for the police to carry on their investigation of a crime. These two are contradictory requirements and a balance must be found between them. Since police has arrested the person, it cannot be the agency that determines whether person must be kept confined further. This can only be decided by a competent judicial authority. This is exactly what is embodied in Art 22(2) that gives a fundamental right to the arrested person that he must be produced before a magistrate within 24 hours of arrest. It says, "Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate."

Section 57 of CrPC also contains a similar provision for a person arrested without a warrant. It says, "No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's court."

Section 76 contains a similar provision for a person arrested under a warrant. It says, "The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 71 as to security) without unnecessary delay bring the person arrested before the court before which he is required by law to produce such person. Provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's court."

Thus, it can be see that it is a very important right that is meant to prevent abuse of police power and to prevent the use of a police station as a prison. It prevents arrest merely for the purpose of extracting confessions. The arrested person gets to be heard by a judicial authority that is independent of the police.

In Khatri (II) vs State of Bihar 1981 SCC, SC has strongly urged upon the State and its police to ensure that this constitutional and legal requirement of bringing an arrested person before a judicial magistrate within 24 hours be scrupulously met. This is a healthy provision that allows magistrates to keep a check on the police investigation. It is necessary that the magistrates should try to enforce this requirement and when they find it disobeyed, they should come heavily upon the police.

Further, in Sharifbai vs Abdul Razak, AIR 1961, SC held that if a police officer fails to produce an arrested person before a magistrate within 24 hours, he shall be held guilty of wrongful detention.

Constitutional Perspective on Art 22(2) -  On the face of it, this article seems to be applicable on arrests with or without warrants. However, in State of Punjab vs Ajiab Singh AIR 1953, SC observed that it applies only to cases of arrests without warrant because in case of an arrest with warrant, the judicial mind has already been applied while issuing the warrant. So further safeguard is not required. This decision has been widely criticized. In any case, the proviso to Section 76 unmistakably provides that a person arrested under a warrant must be produced before a magistrate within 24 hours.

4. Right to consult Legal Practitioner -  Art 22 (1) - For conducting a fair trial it is absolutely necessary that the accused person is able to consult with a legal practitioner whom he trusts. Second part of Article 22(1) gives this fundamental right to an arrested person. It says that no person who is arrested shall be denied the right to consult, and to be defended by, a legal practitioner of his choice. However, this does not mean that the State must provide a legal practitioner of the person's choice. It is up to the arrested person to contact and appoint a such a legal practitioner. The State's responsibility is only to ensure that he is not prevented from doing so.

The same right is also provide by CrPC under Section 303, which says, "Any person accused of offence before a Criminal Court or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice."

5. Right to free legal aid -  Art 21 and Section 304 - A person who does not have the means to hire a legal practitioner is unable to defend himself appropriately. This casts a cloud on the fairness of the trial. Therefore, Section 304 provides that where, in a trial before the Court of Session, the accused is not represented by a pleader, and where appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defense at the expense of the State. In Khatri (II) vs State of Bihar 1981 SCC, Supreme Court has also held that access to a legal practitioner is implicit in Article 21, which gives fundamental right to life and liberty. The state is under constitutional mandate to provide free legal aid to an indigent accused person and this constitutional obligation arises not only when the trial is commenced but also when the person is first produced before a magistrate and also when he is remanded from time to time. In Suk Das vs Union Territory of Arunachal Pradesh 1986, SCC, SC has held that non-compliance of this requirement or failure to inform the accused of this right would vitiate the trial entailing setting aside of the conviction and sentence. The right of an accused person to consult his lawyer begins from the moment of his arrest. The consultation with the lawyer may be within the presence of a police officer but not within the police officer's hearing. SC also held that it is the duty on all courts and magistrates to inform the indegent person about his right to get free legal aid.

6. Right to be informed about the right to inform of his arrest to his relative or friend -
In order to ensure a fair trial and to improve people-police relationship, the Supreme Court, in Joginder Kumar vs State of UP 1994, formulated the rules that make it mandatory on the police officer to inform one friend, relative, or any other person of the accused person's choice, about his arrest. These rules were later incorporated in CrPC under section 50 A in 2005.

Section 50 A (1) provides that once the arrested person is brought to the police station, the police officer must inform a relative or a friend, or any other person of the arrested person's choice, about his arrest. He must also tell the place where the arrested person has been kept. This is a very important step in ensuring justice with the arrested person because this allows the arrested person and his well wishers to take appropriate legal steps to secure his release. However, all this will amount to nothing if the arrested person does not even know about this very critical right. Thus, Section 50 A (2) provides that the police officer must inform the arrested person of this right. Further, as per Section 50 A (3) he must note down the name and address of the person who was informed about the arrest. To make sure that there is no violation of this right, section 50 A (4)  makes it a duty of the magistrate to verify that the provisions of this section were complied with.

7. Right to be examined by a medical practitioner - While Section 53 allows a police officer to get the accused examined by a registered medical practitioner, Section 54(1) gives the accused a right to get himself examined by a registered medical practitioner. Section 54 (1) says thus, "When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during, the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which Magistrate shall, if requested by the arrested person so to do direct the examination of' the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of Justice". While Section 53 is meant to aid the police in investigation, Section 54(1) is meant for the accused to prove his innocence. This right can also be used by the accused to prove that he was subjected to physical injury.

In Sheela Barse vs State of Maharashtra 1983 SCC, SC held that the arrested accused person must be informed by the magistrate about his right to be medically examined in terms of Section 54(1).

However, it is not clear in the section whether the medical person must be of the choice of the accused or shall be appointed by the magistrate. The section is also silent on who will bear the expense of the examination.

Non compliance to this important provision prompted Delhi High court to issue directions that make it obligatory for the magistrates to ask the arrested person as to whether he has any complaint of torture or maltreatment in police custody.

Consequences of non-compliance with the provisions relating to arrest - 
In general, non-compliance does not void a trial. Just because any provision relating to arrest was not complied with does not affect whether the accused is guilty or not. However, the violation will be material in case the accused is prosecuted on the charge of resistance to or escape from lawful custody.
Further, everybody has a right to defend himself against unlawful arrest and a person can exercise this right under Section 96 to 106 of IPC and he will not be liable for any injury caused due to it. Also, a person who is making an illegal arrest is guilty of wrongful confinement and also exposes himself  to damages in a civil suit.
If a person who has an authority to arrest, arrests a person with full knowledge that the arrest is illegal, he will be liable to be prosecuted under Section 220 of IPC. Similarly, any private person who does not have an authority to arrest, arrests a person with full knowledge that the arrest is illegal, can be prosecuted under Section 342 of IPC for wrongful confinement.
A person making illegal arrest also exposes himself to civil suit of false imprisonment.

It is important to note that the provisions regarding arrest cannot be by-passed by alleging that there was no arrest but only an informal detention. Informal detention or restraint of any kind by the police is not authorized by law.
Source : hanumant.com

Consumer Protection Rights : Problem & Solution

Q1. I have instituted a complaint before the Consumer Court against a Medical Practitioner. My complaint has been challenge on the ground that a Medical Practitioner cannot be sued under the Consumer Act. What does law provide?
A. Yes, a medical practitioner can be sued under the Consumer Protection Act 1986 for his or her professional negligence resulting in damage to patient. Section 2 (d) in defining a consumer in Clause (ii) uses the expression ‘hires and avails of”. The word “hire” means employ of wages or fees”. Secondly the words “any service” in s. 2 (d) (ii) in Consumer Protection Act. A eloquent to bring the delinquent medical practitioners within the ambit of Consumer Protection Act. Thirdly, s. 2 (o), Consumer Protection Act which defines service exempts only two types of services, one “service free of charge” and another “contract of personal service” postulates a relationship of master and servant. A medical man whose service is requisitioned for a patient answers the clause ” contract of service” but never “a contract of personal service”. So, a negligent medical professional can be proceeded under the Consumer Protection Act 1986.
Q2. I had purchased seeds from a party. The seeds did not germinate. The other party took the plea that I was not a consumer. Whether purchase of seeds for the purpose of agriculture is purchase for commercial purpose?
A. Purchase made for agriculture is not for commercial purpose. Therefore, the complainant is a consumer and entitled to seek redressal of his grievance in a Consumer Court against the party which supplied defective seed to him.
Q3. I had got a confirmed ticket on Sahara Airways. The flight was later cancelled on account of technical snag. Is it a deficiency in service?
A. Cancellation of flight on account of technical snag is not deficiency in service as it is due to unavoidable circumstances. However, you ought to be allowed refund of the fare but no compensation can be granted on account of any loss suffered by you (if any) because of the said cancellation.
Q4. I was allotted a Maruti Car. There was a delay in delivery of the car. Subsequently, the dealer called upon me to make further payment as the price of the car had gone up. Am I liable to bear the price increase on account of delay caused by the dealer?
A. You are not liable to pay any price increase in the above mentioned circumstances since the increase in price is totally on account of the delay on the part of the dealer for which a consumer cannot be made to suffer.
Q5. Does rejection of application for grant of loan by a Bank constitute deficiency in service for which I can approach the Consumer Court?
A. The Bank has a wide discretion in the matter of granting loans and advances and continuing disbursement of loans sanctioned .The Consumer Courts cannot sit in judgement over the discretion exercised by the Bank and as such you will not succeed in any such action, if taken by you.
Q6. The transformer, which was supplying electricity to me, got burned and was replaced by the department after about two months. However, However I was billed with consumption charges. Am I liable to pay any such charges when there was no consumption of electricity by me?
A. When the electricity was not supplied and the electricity bills produced by you showed that there was no consumption of electricity by you and admittedly the reason for that was burning of the transformer, you are not liable to pay any minimum charges.
Q7. I had applied for electricity connection. However, power supply was not provided to me. Can I seek redressal of my grievance in Consumer Court?
A. Your grievances is that you application for electricity connection was not granted. Electricity may be a service but the hiring of the service is not complete till the Electricity Board sanctions service. Hence, you can’t approach a Consumer Court for redressal of your said grievance. Your remedy is to file a civil suit in the Court of law against the Electricity Board.
Q8. Can Consumer Forums adjudicate disputes involving scale of pay?
A. No, Consumer Forums do adjudicate dispute-involving scale of pay.
Q9. I had applied for subscription in Rajlakshmi scheme of UTI. The essence of the scheme was that the sum of money deposited with the UTI would grow 21 times in 28 years. However subsequently, the UTI extended the maturity date by two years. Can I approach a Consumer Court?
A. Unilateral alteration of terms of payment by the UTI in their above scheme is “Deficiency in Service” for which you can seek relief in a consumer court.
Q10. My car met with an accident. The insurance claim was rejected on the ground that my driver was not holding valid driving license. Should I approach a Consumer Court for seeking the Insurance claim?
A. The Consumer Court will not be able to grant you any relief since the driver employed by you did not have a driving license. You were bound under law to check the ability of the person employed by you and the failure in holding a license for driving well debar you from claiming the Insurance Claims.
Q11. I had purchased a fridge, which suffered from several defects, and those defects could not be removed or repaired by the Company. Can I seek redressal of my grievance?
A. You can certainly seek redressal before the Consumer Forum. In a similar case as yours, the Forum appointed a Local Commissioner who corroborated the version of the complainant. It was held by the Forum that the fridge was found to be defective within the period of warranty. The opposite party was directed to replace the unit with a new one.
Q12. I filed a complaint before the State Commission regarding payment of policy amount in death claim, which was allowed to me by the State Commission. I wish to file another complaint claiming the Double Accident Benefit. Can I do so?
A. It is well-settled principal of law that one can not educate the same cause of action before a court of law or before another adjudicating Forum after it had already been adjudicating upon earlier. This is the basis for the relevant provisions under the Code of Civil Procedure, 1908 (CPC) which embody a sound principal of law to obviate multiplicity of litigation. Even though Consumer Forums are not governed by the CPC yet the sound principles of law and procedure embody in that CPC are followed by the Forums. Consequently, second complaint filed on the same cause of action would not be maintainable.
Q13. I had applied for allotment for a plot and paid Rs.100 as registration fees. At the time of draw my name was not included. I lodged a complaint before the Consumer Forum, wherein the Housing Board argued that I was not a “Consumer” since no allotment had taken place. What is the correct position in law?
A. Where the complainant had paid for the cost of application form as well as the registration fee, he is the potential user and the nature of transaction is covered by the expression “service of any description”. As such the complaint is maintainable. The Housing Board is deemed to have undertaken to include your name in the draw of lots for allotment of a plot. However, your application has not been considered because your name was not included in the draw. The only inference that can be drawn is that the person who prepared the list was negligent in discharge of his duty. You can proceed on this ground.
Q14. My grievance is that I had registered with the M.I.G. scheme of the Haryana Housing Board and the board had escalated the price of the flats three times within a period of two years. Does my case lie within the jurisdiction of Consumer Forums?
A. It has been laid down that under Consumer Protection Act the pricing policy of flats cannot be adjudicated upon by Consumer Forums. The question of pricing of the flat by Housing Board is not a Consumer dispute. If any amount has been illegally charged from you by Housing Board , you can recover the same through a civil court.
Q15. A Complainant filed a case against our company who’s grievance related to transactions dating back to years 1994-95 while the complaint was filed in the year 1999. Is the complaint within time?
A. Session 24 A of the Consumer Protection Act, 1986 provides a limitation period of two years within which the complaint is required to be filed. In the light of the above, the complaint is time barred and hence not maintainable.
Q16. My grievance is that I am not getting regular supply of water. What can I do against the concerned Government Authority before a Consumer Forum?
A. The Government supplying water is performing a statutory functions which can not termed to be rendering of service. Hence the Consumer Forums have no jurisdictions to entertain such a complaint.
Q17. My grievance is that a Hospital where I was treated declined to give me the medical records pertaining to my treatment and operation for Ulcer. Can it be termed a deficiency is service on the part of the hospital?
A. There is no negligence on the part of the hospital by reason of such failure to supply the said papers unless there was a legal duty cast on the hospital to furnish such documents to the patients, which has to be seen from their Rules and Regulations.
Q18. A registered letter sent to me was not delivered. What is the liability of an employee of the Post Office in this matter?
A. Section 6 of the Indian Post Office Act 1878 provides that the Government shall not incur any liability by reasons of the loss, mis-delivery or delay or damage to any postal article in course of transmission by post except in so far as such liability is made in express terms to be undertaken by the Government and no Officer the Post Office shall incur any liability by reason of such loss, mis-delivery , delay or damage unless he had caused the same fraudulently or by his willful act or default. In view of the said Section 6, your complaint is not maintainable unless there is allegation an of fraud or willful act of negligence of any postal employee.
Q19. A Superfast Train in which I was travelling was delayed for long hours without any reason. Can this be a ground for filing a complaint against the Railways?
A. Additional charges are taken by the Railways from the passengers travelling by a Superfast Train. If the trains are delayed for long hours and the delay has not been properly explained it amounts to deficiency in service and therefore the Railway is bound to refund the excess charges.
Q20. I am a shareholder of HLL. Despite having made all the payments, the share certificates were delivered very late. I have claimed the loss in terms of the escalation in the market price of the share. Is my claim valid?
A. Share market is a speculative market and there is bound to be fluctuation in value of shares of the company depending on market condition. Merely because the value of the share went up you are not entitled to get compensation at the increased rate, as damages are remote damages.
Q21. I had paid the telephone bill but inspite of that the telephone department disconnect my telephone without any notice. Can the department disconnect the telephone without notice to the subscriber?
A. Disconnection cannot be effected without notice to the subscriber. The Department is bound by law to give such a notice. You can seek compensation for the same alongwith restoration of the connection.
Q22. I had bought a scooter in last May, after some months it is creating problem to me. When I complained to Service center they serviced it and say the problem was removed. But last week it is creating the same problem again. When I complained them they return me the Scooter next day and they say again that the problem was removed. But today it is creating the same problem to me. Can I go to file a case in consumer forum.
A. You can definitely file a case before the Consumer Forum but the ideal remedy at this stage would be to complain to the company i.e. Bajaj Scooters Ltd. against the service center and wait for their response. In case nothing is done even after this, then it will be prudent to file a case in the Consumer Forum.
Q23. We have been buying Parag milk packet 500 ml from a retailer. The packet though gives only 400ml. What action can we take against the company.
A. There is clear case of cheating and you can file a criminal complaint under Section 421 of the Indian Penal Court. Besides filing a Criminal complaint, you can also approach a Consumer Court for this purpose. You must collect adequate evidence before doing the same, i.e.; retain a sealed packet of Parag Milk which indicates the quantity of 500ml but actually weighs 400ml.
Q24. I had deposited a booking amount with Pal-Peugeot, letter the same was cancelled but no refund has come so far, for the last two years. The matter was referred to Delhi Consumer forum who referred to than (Maharashtra) consumer forum. Documents were sent to them but of no avail, again it was sent by us to Delhi as the deposit was made to Premnath Motors Delhi but Delhi Consumer forum has again written to follow than.
A. You should file an appeal before the State Commission against the order of the Consumer Forum Since the cause of action arose at Delhi, i.e.; the Distributor was located at Delhi and money also seems to have been paid at Delhi the Delhi Consumer Forum had the jurisdiction in case the distributors (who work at Delhi) have been made parties to the said petition. You should file an appeal against both the manufacturers as well as the distributors, i.e.; Prem Nath Motors against the order.
Q25. I purchased on 1.1.2000 from a shop in Panjim, Goa a bottle of Scotch Whiskey. I find that it is not original in that it tastes too sweat. It appears to be spurious. I have written letters to the MD, Goa Tourism but there is no reply. What remedy is available to me to the relief.
A. You can certainly file a complaint before the Consumer Forum against supply of Spurious Whisky supplied to you as well as also lodge a Criminal Complaint in this regard. However, the difficulty (which is a major one) is that since the bottle of Whisky has been open, it will be virtually impossible to prove that the contents of the Whisky are the same as they were when the bottle was sealed. Since, the legal system is totally based on evidence / proof, it would not be a worthwhile exercise to institute any legal proceedings in the facts and circumstances of the present case.
Q26. I understand that under the Consumer Protection Act, a complain has to be made within 2 years from the date on which the cause of action arose. What happens in a case where the 2 year period has elapsed because the I spent the time writing(and replying to) to the manufacturer in the hope that he would replace the good? What argument can I give to the Forum in response to the plea of 2 years which I know will be taken by the manufacturer?
A. It is correct that the Consumer Protection Act, provides for a limitation period of two years for filing a complaint and the said period starts from the date when the cause of action arose. The same is provided under Section 24-A of the Consumer Protection Act, 1986. However, the Consumer Forum has the power to entertain a complaint even after the said period in case it is convinced that the complaint could not be filed within the said period on account of certain sufficient cause. Thus you would have to give a good explanation in order to have the delay condoned from the Consumer Forum. In case the only ground pleaded by you is that you were corresponding with the Manufacturer and hoping to get the goods replaced, the same would not be construed as sufficient reasons for condoning the delay.
Q27. Can I claim for replacement. If they do not replace the vehicle can I move to consumer forum. Who should I make a party i.e. the dealer, or the LML company or both of them. The dealer is in Karol Bagh the company office in Greater Kailash and factory’s regd. office in Kanpur in which Jurisdiction/Zone should I file the complaint. Or any other detail which you feel Justified to provide me.
A. You should again inform the Company about all the facts and steps taken by them for removing the defect in writing and further pursue the matter with the Company and try to get the defect rectified. In case your efforts fail you can file the complaint with Consumer Forum at Delhi by making both the Company and the Dealer as parties to the complaint. Replacement is allowed by Forum if the defect is such that it is not possible to rectify the same. Give the Delhi address of the company and file the complaint at Delhi.
Q28. I injured my knee in a game of football on 31st December 1997. It was diagnosed as ACL TEAR. For that I was operated upon in the knee on 2nd March 1998. After the operation my knee developed stiffness, which is unusual in such cases even after undergoing physiotherapy for two months I was unable to bend or straighten my knee. So after two months of operation my knee was manipulated under anesthesia to relieve stiffness. A plaster was put on the knee for one month. I was told to start walking . I used to walk with a limp. For about 8 months I continued to walk with a limp but then my condition deteriorated & in March-99 I had to start using crutches to move around. To find out the cause of this pain I underwent investigative arthoscopy in June-99 which revealed the following 1. ACL Laxity 2. meniscus tear 3. patellofemoral osteoarthritis . I was advised by the doctor to do physiotherapy, and take painkillers for the pain, I am still doing physiotherapy, but neither the pain has reduced nor am I able to walk without crutches, this whole experience has affected my life badly. Can I sue the doctors for negligence / inefficiency. My both operations were carried out in military hospitals, and they were done free of cost since I am serving in army. So I cannot go to Consumer protection court. Please advise?.
A. You can file a writ petition in the High Court of judicature against the hospital, making doctors responsible for your condition a party. You can also seek damages alongwith the appropriate action against the doctors and the management in the writ petition.
Source : Vakil No.1.