Wednesday, December 21, 2011

Finality of orders of consumer forums...

The constitution of the consumer forums have been with a view to cater to the interest of vast consumers scattered all over the country so in addition to judicial analysis it is provided that some general people also can be included and keep their point of view for better governance,justice and transparency where in one is a women among the three paner members.
Basically according to the consumer protection Act all hearings are done by President and at least one member and in absense of one member president alone can not take up hearings and hearings here mean any kind of hearing and otherwise it can be said that the forum is incompetent to take up proceedings with only president so another member is necessary,but there is also provision that if in a forum president is only appointed and other members posts are vacant and not filled than president can take up hearings as usual.

When hearings of a complaint is complete the President writes the order and when it is signed by other members or the member present in the hearing than the order is complete but when they differentiate they will write the points of difference and send it to the third member for perusal and the order of the member with whom the third member agrees becomes the final order of the forum being the majority is the order principle followed.But one trickly and difficult situation arises when there are only two members including the President and the other member is not appointed and there is sure shot delay possible for the appointment of the same member and in these kind of forums when point of difference occurs , naturally the practice should be the orders of these members to be sent to the third member but when it is known that there is no third member there and no one is going to come soon than it becomes difficult to decide as the principle is the order which is disputed to be kept in abeyance till the third member is appointed but if so is it in favour of the consumers when the vary act is formed to handle consumer problems expediously and as soon as possible and a time frame is also made that every consumer complaint has to be decided within 90 days of its filing.

So if when the hearing is complete and because of this problem the forum have to keep the order for a long time like years than the law itself frustrates and the act requires assessment and amendment on many points.

Monday, December 12, 2011

Whether consumer forums have power to restore a complaint dismissed for default?

Here two cases are given for study and understanding of the situation and what the Apex court thinks about the situation.
CMP.NO.09 /2009 IN COP.NO. 59 / 2006

DATED THIS THURSDAY THE 5TH DAY OF NOVEMBER 2009

1. A.P.Sundaramoorthy,

2. S.Sakthivel,

3. S.Murugaraj,

4. S.Bhuvaneswari,

All residing at

No.5, K.N.P.Street,

Elampillai, Salem-2. Petitioners / Complainants



-vs-

1. Salem Polyclinic

rep by Dr.K.N.Rao,



2. Dr.B.Radhakrishna, M.D.

Salem Polyclinic,

Department of Medicine &

Pain Management,

266, Omalur Road,

Salem 636 007. Respondents / Opposite parties.



Petition filed by the petitioner praying to restore the complaint which was dismissed for default on 14/6/2007 and this petition coming before us on 02.11.2009 in the presence of Mr.R.Gunasekaran, Counsel for the petitioner and Mr.R.Srinivasan, Counsel for the first respondent and Mr.C.Subramaniyan, Counsel for the 2nd respondent and after hearing of Mr.R.Gunasekaran, for petitioner and Mr.R.Srnivasan, for first respondent and Mr.C.Subramaniyan, for 2nd respondent, this forum passed the following :

ORDER

1. The gist of the Affidavit filed by Thiru.R.Gunasekaran, Advocate for the petitioners:

Thiru.R.Gunasekaran, Advocate for the petitioners on 14.6.2007 after reaching this forum, felt uneasy with head ache and giddiness and vomiting sensation and so he has handed over the case bundle in CC 59/2006 to his colleague advocate Thiru.G.Shiva shankar and requested him to receive the written version, if any, filed by the opposite parties and to note down the next hearing date. He has also told him to inform the Hon’ble forum that he has

already furnished copies of all documents as well as copy of the complaint at the time of filing the complaint itself. But, Thiru.G.Shiva shankar told him that his personal case, as well as the senior cases were also posted on that date and he assured him that he will inform him about the proceedings.. On the same day evening, Thiru. G.Shivashankar contacted Thiru.R.Gunasekaran and informed him that he could not note the hearing date because he did not hear the case in Cc 59/2006 being called.

2. As Thiru.R.Gunasekaran, Advocate for the petitioner was unwell, he could not able to come to this forum’s office for the next one week to verify the diary. Only on 21/6/2007, he came to the forum’s office and verified the diary. He was shocked to find that the case was dismissed for default on 14/6/2007, on the ground that there was no representation on the side of the complainant and on the ground that copies of documents were not furnished to the opposite parties.

3. But, the copies of all documents along with copy of complaint were furnished to enable the opposite parties to answer the claim of the complainants. There is no provisions as per law to file a memo by the opposite parties to direct the complainants to furnish the copies of documents. If the opposite parties wants copies of documents they can very well file a copy application. The opposite parties, using this as an excuse, have not filed their written version within 15 days as requited under sec.13 (2) of Consumer Protection Act, 1986. The complainants have a good case on merits. Unless this petition is allowed and the complaint is restored to file, the petitioners will be put in to irreparable loss and hardship. Hence, it is prayed to restore the complaint to the file which was dismissed for default on 14/6/2007.

4. The Gist of the supporting affidavit filed by Thiru.G.Shivasankar, Advocate.

Thiru.G.Shivasankar, Advocate has stated that on 14.6.2007 when he was present in this forum, his colleague advocate Thiru. R.Gunasekaran told him that he was feeling uneasy with head ache and giddiness and vomitrting sensation, and handed over the above case bundle and requested him to receive the written version, if any, filed by the opposite parties and also to note down the next hearing date. He has also stated that Thiru.Gunasekaran requested him to inform the forum that he had already furnished all copies of the documents along with the complaint copy at the time of filing the complaint itself. He has

further stated that on that date his personal case and his senior’s cases were also posted in the forum, but he did not hear the case in CC 59/06 being called and so he could not note the next hearing date and he has informed the same fact to Thiru.R.Gunasekaran.

5. The gist of the counter filed by the first respondent :



The averments contained in the affidavit are not admitted as true . The applications under Rule 9 of CPC is not applicable to the Consumer Protection Act and this petition is liable to be dismissed inliminie. As per the judgement of Hon’ble Supreme Court reported in 2000 (1) CTC page 735 between New India Assurance Company Ltd –vs- R.Srinivasan, the District forum has no power to set aside the exparte order. The complainant is liable to furnish copies of complaint and documents filed to the opposite parties. Only on receipt of the copies of the complaint with all documents filed by him, the opposite party can effectively repudiate the claim. But, in this case, only the copy of the complaint was served on the first opposite party. After entering appearance through his lawyer, on verification before the district forum, it was found 83 documents have been filed along with the complaint. But, copies of such documents were not furnished to this respondent and they were also not available before this forum.

6. Hence, a memo was filed before this forum on 7.2.2007 on behalf of the first respondent stating the above fact and also for a direction to the complainants to furnish copies of the documents to the first respondent. Even after filing of the memo, the complaint was adjourned from 2.3.2007 to 29.3.2007 ,16.5.2007 and 14.6.2007 directing the complainants to furnish copies to the respondent. But, the copies were not furnished by the complainants and there was no representation on 14.6.2007, nor were the complainants present. So, the complaint was dismissed for default, for non compliance of directions.

7. It is not correct to say that counsel had entrusted the case file to another advocate for representation and on that date the case was not called in open court. With a view only to harass the respondent, this application has been filed by the petitioners. There is no merit in the petition. No cause of action for filing this petition. Hence, it is prayed to dismiss the petition with costs.

8. The gist of the counter filed by the 2nd respondent is follows :

The petition is false, frivolous, vexatious and unsustainable on law and on facts. It is false to say that on 14.6.2007 petitioners’ counsel reached this forum and felt uneasy with headache and giddiness and vomiting sensation and so he handed over the case bundle to his colleague Mr.G.Sivasankar who was present and requested him to receive the written version, but the case was not called. It is also false to say that the counsel for the petitioner came to know the dismissal order only on 21.6.2007. It is false to say that there is no provision as per law to enable the opposite party to file a memo to direct the complainant to furnish the copies of documents. On 14.6.2007 on the representation of the petitioner’s counsel, the case was passed over by this forum for furnishing the copies of documents to this respondent till 4.p.m.. But the petitioners’ have not taken any steps to furnish any documents and so the case was dismissed for default on the same date. The allegation stated in supporting affidavit filed by Thiru.Sivasankar are also false. It is false to say that on 14.6.2007 he was present before this forum on behalf of the petitioner’s counsel. It is also false to say that advocate Thiru.Shivasankaran was waiting before this forum for other cases also, as mentioned in the affidavit. There was no representation at the time of calling at 4.00 p.m. on 14.6.2007. This petition is not at all maintainable in law as described hereunder:

(a) as per law, the Advocate has no right to file this affidavit.

(b) This petitioners’counsel came to know the dismissal order on 14.6.2007 but he has filed this petition only on 22.6.2007.

(c) The petitioners’ have not filed their objection in the memo filed by the first opposite party, if so bound and duty to furnishing the documents to this respondent.

(d) The Hon’ble forum has passed an order on merits, only remedy the petitioner prefer a revision.

(e) This petitioner have not obeyed the order by this Hon’ble forum.

(f) The petitioners’ counsel has not produced any document to prove his illness.

9. The petitioner’s counsel have filed this petition only to dragon on the proceedings and so it may be dismissed with costs.

10. Both side Arguments heard. Records perused.





11. The points for consideration is : Whether this petition filed by the

petitioners can be allowed or not?



12. POINT: The learned counsel for the petitioners argued that the orders of this forum dismissing the complaint is not valid in the eye of law as the case was not posted for examination of any witness or petitioners on 14.6.2007, but the case was posted only for filing of written version by the opposite parties. He has also argued that the filing of memo by the opposite parties to direct the complainants to furnish the copies of all documents to the opposite parties is also not valid and there is no provision in the Act for filing such memos. The learned counsel further argued that this petition Order 9 Rule 9 was filed within the stipulated period of 30 days and this may be allowed. He has further argued that on extreme circumstances, the counsel on record may request his colleague advocate to represent the case on behalf of him, before this forum. The learned counsel vehemently argued that though there is no provision in the Consumer Protection Act, 1986 for filing such petition, as per the order of the various Hon’ble State Commissions this petition may be entertained and suitable orders may be passed. The learned counsel for the petitioner contended that the latest circular issued by the Hon’ble State Commission, Chennai may be considered and this petition may be allowed, as prayed for. The learned counsel concluded that the decision of the apex court reported in AIR 2000 SUPREME COURT 941in the case of New India Assurance Co.Ltd –vs- R.Srinivasan” may be followed and this petition may be allowed as prayed for.



13. But the learned counsel for the respondents 1 & 2 argued that as per the Consumer protection Regulations issued by the Hon’ble National Consumer Disputes Redressal Commission, the copies of complaint along with copies of documents shall be served upon the opposite parties as per the Regulations 10 (5). He has further argued that in this case, the complainant has not filed the copies of documents along with the complaint and so the copies of the complaint alone was served on the opposite parties and the copies of documents were not served to the opposite parties and so the first opposite party was forced


to file a memo to direct the complainant to furnish the copies of documents. But, inspite of the directions given by this Forum, the complainant have not come forward to furnish the copies of documents and as there is no representation on 14.6.2007 the complaint was dismissed for default. The learned counsel for the opposite parties vehemently argued that as per Regulations 26, the provisions of Civil Procedure Code are not applicable to the Consumer forum and so this petition under Order 9 Rule 9 of Civil Procedure Code is not maintainable and this petition is liable to be dismissed.

14. The learned counsel drawn the attention of this forum to the decision of our Hon’ble Supreme Court reported in III (1999) CPJ (1) (SC) and argued that the Hon’ble Supreme Court has held that there is no provision for setting aside the exparte order or restoration of complaint which was dismissed for default and prayed this petition may be dismissed with costs.

15. It is true that there is no provision in the Consumer Protection Act, 1986 for filing this kind of petition under Order 9 Rule 9. As pointed out the counsel for the respondent as per Section 22 A of the Consumer Protection Act, only the Hon’ble National Commission is empowered to set aside the exparte order passed by the Hon’ble National Commission. But, the decision of our Apex court in Srinivasan’s case reported in 2000 CTJ 1123 (SC) (CP), the decision of our Hon’ble High Court reported in 2008 3 Law weekly P838, the order of our Hon’ble State Consumer Disputes Redressal Commission, Chennai in A.P.No.656/99 with CMP No.259/2008 and the orders of some other Hon’ble State Commissions are in favour of entertaining such petitions.

16. The Hon’ble Supreme Court of India has decided in III (1999) CPJ 1 (SC) in the case of “Jhotsana Arvind Kumar Shah & Others -vs- Bombay Hospital Trust and held that,

“ Consumer Protection Act, 1986 – Sections 17,24 – Setting Aside Ex parte Reasoned Order : No jurisdiction vested with State Commission If law does not permit respondent to move application for setting aside ex parte order, order of State Commission setting aside exparte order cannot be sustained – No provision inAct enabling State Commission to set aside ex parte order.” The Hon’ble Supreme Court further held that, “The order of the State Commission setting aside the exparte order was one without jurisdiction, we cannot sustain the same”.

17. So, from the above decision of our apex court it is clear that the Hon’ble State Commission or District Consumer forum are not empowered to entertain the petition to set aside the exparte order passed by them.

18. But,our Hon’ble Supreme Court of India in the case of “ New India Assurance Co., Ltd -vs- R.Srinivasan reported in 2000 (1) CTC 735 has held that ,

“Powers of Civil court in Code of Civil Procedure is made available to District Forum to limited extent – Provisions of Order 9 of Code of Civil Procedure is not made applicable to proceedings of District Forum or State Commission or National Commission – Court cannot extend provisions of Order 9 to Forum created and to proceedings under Consumer Protection Act – Rules do not provide that if complaint is dismissed for default by District Forum or by State Forum second complaint could not lie - No parallel provision contained in Order 9, Rule 9 is found in Consumer Protection Act – Rule of Prohibition contained in Order 9, Rule 9 (1) of Code of Civil Procedure cannot be extended to proceedings of District Forum or State Commission – Second complaint could be filed explaining why earlier complaint could not be pursued and was dismissed for default “.



19. But, in the same decision, the Hon’ble Supreme court of India has also held in para 18

“ we only intend to invoke the spirit of the principle behind the above dictum in support of our view that every court or judicial body or authority which has a duty to decide a lis between two parties, inherently possesses the power to dismiss a case in default. Where a case is called up for hearing and the party is not present, the court or the judicial or quasi-judicial body is under no obligation to keep the matter pending before it or to pursue the matter on behalf of the complainant who had instituted the proceedings. That is not the function of the court or, for that matter, of judicial or quasi-judicial body. In the absence of the complainant, therefore, the court will be well within its jurisdiction to dismiss the complaint for non-prosecution. So also, it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for the non-appearance of the complainant. “

20. So, from the para 18 of the above decision of our apex court it is clear this forum is also having power to entertain this kind of petition.

21. But, the matter has not settled there. The Hon’ble Supreme court of India while dealing with the case of “Rajeev Hitendra Pathan and others -vs-Achyut Kashinath Karekar and another” reported in 2007 CTJ 1123 (Supreme Court ) (CP) held that “ Inview of the divergence of views expressed by coordinate Benches, in the case of “Jyotsana Arvindkumar shah and others –vs- Bombay Hospital Trust “ III (1999) CPJ I (SC) and “New India Assurance Co.Ltd –vs- R.Srinivasan” 2000 CTJ 1123 SC (CP) the matter was referred to a larger Bench to consider whether the State Commission could recall an ex parte order. The verdict of our apex court is awaited.

22. In these circumstances, considering the difficulties faced by the Madras Consumer Court Bar association The Hon’ble State Consumer Disputes Redressal Commission, Chennai has issued an order in Suo motto reference case No.1/08 dated 4.12.2008 as follows :

1. The district Forum has got power to restore the complaint which was

Dismissed for default.

2. The District Forum has got power to set aside the exparte order setting

the opposite party exparte. If a final order is passed on merits, the District Forum has no power to set aside the said decision which is passed on merits.

23 Hence, it is clear from the above circular of the Hon’ble State Consumer Disputes Redressal Commission, Chennai that the District Forum has got power to restore the complaint which was dismissed for default.

24. In this juncture, it is pertinent to note the decision of our Hon’ble High Court in the case of “Mrs. Vasanthi Thiagarajan, Principal, Sishya School, Hosur Town, Krishnagiri District, Revision petitioner -vs- R.Nageswaran reported in 2008-3-L.W. 838 in which it was held that the District forum is having power to set aside such exparte order passed by it.

25. As pointed out by the learned counsel for the petitioner, Hon’ble State Consumer Disputes Redressal Commission, Maharashtra State, Mumbai in the first Appeal No.05 of 2008 dated 17/10/2008 ;

The Hon’ble State Consumer Disputes Redressal Commission, Orissa: Cuttack in the first Appeal No.633of 2006 dated 24th July, 2008 and

The Hon’ble State Consumer Disputes Redressal Commission, Hydrabad in first Appeal No.614 of 2008 , dated 8.5.2009 have decided that the district Consumer Forum is having power to entertain the petition under Order 9, Rule 9 of Civil Procedure Code for restoration of the complaint. Even our Hon’ble State Consumer Disputes Redressal Commission, Chennai in AP.No.656/99 dated 8.4.2008 held that the Appeal is restored which was dismissed for default. So, various State Commissions also viewed that petition under Order 9, Rule 9 may be entertained and suitable orders may be passed.

26. Moreover, furnishing of the copies documents to the opposite parties is the main criteria for filing a memo by the opposite party No.2 which was forwarded to the complainant. But, the complainant’s Learned counself argued that he has filed the copies of documents along with complaint. But, the office has made an endorsement that the copies of documents were not enclosed. However, the copies were received by the opposite parties 1 & 2 on 10.6.2009.

27. This complaint was dismissed for default on 14.6.2007 as the complainant was absent and as there is no representation and for non-prosecution. But, the counsel for this petitioners have stated in his affidavit that he attended this Forum on 14.6.2007, but as he felt uneasy with headache, giddiness and vomiting sensation, he left this forum after entrusting the case bundle to his Advocate colleague, Thiru.Shivasankar, by giving instructions Thiru.G.Shivasankar, Advocate has stated in his supporting Affidavit that it is true that Thiru.R.Gunasekaran, Advocate has entrusted the case bundle by giving instructions, but the case was not called in the open forum. In the counter filed by the 2nd respondent, it is stated that the counsel for the petitioners not at all present and the case was called at 4.00 p.m. and orders were passed. So, we are in a position not to believe both versions.

28. Hence, it is clear that the complaint was not dismissed on merits or by a reasoned order. The complaint was dismissed only for the non-appearance of the complainant or his counsel and for non-furnishing of copies of documents.

29. In these circumstances, we are of the opinion that an opportunity may be given to the petitioners and this petition may be allowed in the interest of justice. But, at the same time, the petitioners have to feel the pinch of the act of non- appearance before this forum and for non furnishing of documents.

In the result, this petition is ordered to be allowed on payment of cost of Rs.2,000/- by the petitioners to the respondents on or before 13/11/2009failing which this petition shall stand dismissed.

Dictated by the President to steno typist, transcribed by her and corrected and pronounced this the Thursday the 5th day of November 2009.
==========================================================

Mr. Reju Thomas, Vadackeparambil vs The National Insurance ... on 4 August, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 37468 of 2004(I)
1. MR. REJU THOMAS, VADACKEPARAMBIL,
... Petitioner
Vs

1. THE NATIONAL INSURANCE CO.LIMITED
... Respondent
2. M/S. MEDICARE SERVICES CLUB,
3. STANDARD CHARTERD GRINDLYAS BANK LTD.,
4. THE CONSUMER DISPUTES REDRESSAL
For Petitioner :SRI.A.KUMAR
For Respondent :SRI.RAJAN P.KALLIYATH
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR Dated :04/08/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
------------------------------------------ W.P.(C) NO. 37468 OF 2004
------------------------------------------ Dated this the 4th day of August, 2008
JUDGMENT
Whether a Consumer Redressal Forum has power to restore a complaint which was dismissed for default, and if not, whether a petition under Article 226 or 227 of Constitution of India would lie, challenging the order dismissing an application filed for restoration of the complaint.
2. Petitioner filed a complaint before District Consumer Redressal Forum, Ernakulam, numbered as O.P.487 of 2003. It was dismissed for default on 18.5.2004. Petitioner filed I.A. 414 of 2004 (Ext.P2) to restore the complaint. In Ext.P2 petition, petitioner contended that he was ready to proceed with the complaint and had filed an affidavit in lieu of chief examination and on 18.5.2004 he was ready to give evidence and was instructed by his counsel to answer the roll call and inform the Forum that he is ready to give evidence but unfortunately due to his inexperience, he missed the roll call and only after arrival of the counsel at 12 a.m. when enquiries were made, it was WP(C)37468/04 2
realised that the complaint was dismissed for default. It was contended that this fact was brought to the notice of District Forum on the afternoon session and dismissal of the complaint was not due to his negligence or willful laches and therefore it is to be restored. Under Ext.P3 order, the petition was dismissed for the reason that case of the petitioner that he was present in Court on 18.5.2004 and that fact was brought to the notice of the Forum cannot be accepted as the order sheet does not reflect the same and as no sufficient reason was shown to restore the complaint, complaint cannot be restored. This petition is filed under Article 226 and 227 of Constitution of India to quash Ext.P3 order contending that as the dismissal was not due to the negligence or willful laches on the part of the petitioner, District Consumer Redressal Forum should have restored the complaint and considered the complaint on merit, after affording opportunity to the petitioner and therefore the order is to be quashed and compliant is to be restored.
3. Learned counsel appearing for petitioner and first respondent Insurance Company were heard.
4. Learned counsel appearing for petitioner argued that though there is no specific provision for restoration of a WP(C)37468/04 3
complaint dismissed for default, District Consumer Redressal Forum has inherent jurisdiction to restore a complaint dismissed for default. Reliance was placed on the decision of the Apex Court in New India Assurance Company Limited v. R. Srinivasan (AIR 2003 SCC 242). It was pointed out that in view of the conflicting decisions a subsequent Bench of the Apex Court, in Rajeev Hitendra Pathan & others v. Achyut Kashinath Karekar & another (2007 (7) SCC 667), referred the question to a larger Bench. The learned counsel argued that in view of the subsequent decision of the Supreme Court and the reference made to larger Bench, it is to be found that District Consumer Redressal Forum has jurisdiction to restore a complaint to file which was earlier dismissed for default. Learned counsel also argued that even if it is found that the petitioner could have challenged the order by filing an appeal or revision, as the writ petition was admitted and is pending before this Court from 2004 onwards, it may not be thrown out compelling petitioner to approach another Forum at this belated stage. Reliance was placed on the decision of the Apex Court in Hirday Narain v. Income Tax Officer, Bareilly (AIR 1971 SC 33) and Thressiamma v. Union of India (1999 (2) KLT WP(C)37468/04 4
683).
5. Learned counsel appearing for first respondent argued that when under amended Section 22A of Consumer Protection Act, the National Commission was given power to set aside an exparte order, such power was not given either to the State Commission or to the District Consumer Redressal Forum and therefore District Redressal Forum has no jurisdiction to set aside its own order, even if it is an order dismissing the complaint for default. Learned counsel pointed out that Section 15 of the Consumer Protection Act provides for an appeal against an order passed by the District Forum and under Section 13(2)(b) of the Act, the District Forum has jurisdiction to dismiss a complaint on the failure of the complainant to appear and pass an order exparte on the basis of the evidence brought in by the complainant, eventhough the opposite party omits or fails to take action to represent the case before the District Forum and therefore an order passed exparte dismissing the compliant is an appealable order as provided under Section 15. It was also pointed out that as provided under Section 17(1)(b) of the Act, State Commission has jurisdiction to call for records and pass appropriate orders in any consumer dispute, which is pending or WP(C)37468/04 5
has been decided by a District Forum within the State, if it appears to the State Commission that District Forum has exercised jurisdiction not vested in it by law or has failed to exercise jurisdiction so vested or has acted in exercise of jurisdiction illegally or with material irregularity and if so petitioner is entitled to file a revision, challenging the order dismissing the application filed by him, before the State Commission and therefore Article 226 or 227 of Constitution of India cannot be invoked and the writ petition is not maintainable.
6. Section 13 of the Consumer Protection Act (hereinafter referred to as the Act) provides the procedure to be complied by the District Forum on admitting a complaint. Sub clause (i) and (ii) of clause (b) of subsection 2 of Section 13 of the Act empowers the District Forum either to dismiss a complaint for default or to pass an exparte order against respondents based on the evidence of the complainant. The Act does not contain a provision empowering the District Forum either to restore a complaint which is dismissed for default or to set aside the exparte order passed under Section 13 (2) (b) of the Act. This omission cannot be ignored. Section 22A of the WP(C)37468/04 6
Act was inserted by The Consumer Protection Amendment Act (Act 62 of 2002) empowering the National Commission to set aside an exparte order. Section 22A provides that where an order is passed by the National Commission exparte against the opposite party or a complainant, the aggrieved party may apply to the National Commission to set aside the said order in the interest of justice. Even when such a power was granted to the National Commission by the Amendment Act, such a power was not given either to the District Forum or the State Forum. It is also important to take note of the fact that Amendment Act 62 of 2002 was introduced subsequent to the decision of the Apex Court in Jyotsana Aravindkumar Shah v. Bombay Hospital Trust (1999(4) SCC 325) and also the decision in New India Assurance Company Limited v. Srinivasan's case (supra).
7. In Jyotsana Aravindakumar Shah's case (supra) the power of the State Commission to set aside an exparte order was considered by the Apex Court. It was held that so long as there is no provision in the Act enabling the State Commission to set aside an exparte order, it cannot set aside an exparte order. Their Lordships held:
"The State Commission, however, fell into WP(C)37468/04 7
an error in not bearing in mind that the Act under which it is functioning has not provided it with any jurisdiction to set aside the ex parte reasoned order. It is also seen from the order of the State
Commission that it was influenced by the concluding portion of the judgment of the Bombay High Court to the effect that the respondent (writ petitioner) could approach the appellate authority or make an appropriate application before the
State Commission for setting aside the ex parte order, if permissible under the law. Here again, the State Commission failed
to appreciate that the observation of the High Court would help the respondent, if permissible under the law. If the law does not permit the respondent to move the
application for setting aside the ex parte order, which appears to be the position, the order of the State Commission setting WP(C)37468/04 8
aside the ex parte order cannot be
sustained. As stated earlier, there is no dispute that there is no provision in the Act enabling the State Commission to set aside an ex parte order."
8. The argument of the learned counsel appearing for petitioner is that in view of the subsequent decision it is to be found that though the Act does not provide the power, Court has the inherent power to set aside an exparte order.
9. The question considered by the Apex Court in New India Assurance Company Limited Vs. Sreenivasan (supra) as is clear from paragraph 5 of the judgment was whether in view of dismissal of the first complaint filed by the respondent therein, a second complaint on the same facts and cause of action would lie and whether it ought to have been dismissed as not maintainable. Their Lordships considered the power of Consumer Redressal Forum under Section 13 and held that powers which are available to a civil Court under Code of Civil Procedure are made available to District Forum in respect of matters enumerated in sub section 4 of Section 13 and provisions of Order IX are not made applicable. Their Lordships WP(C)37468/04 9
then held:
" 10). We have already indicated above that the Code of Civil Procedure has been
applied to the proceedings under the
Consumer Protection Act only to a limited extent. If the intention of the legislature was to apply the provisions of Order 9 also to the proceedings under the Consumer
Protection Act, it would have clearly
provided in the Act that the provisions of Order 9 will also be applicable to the
proceedings before the District Forum or the State Commission or, for that matter, before the National Commission. If the legislature itself did not apply the rule of prohibition contained in Order 9 Rule 9(1), it will be difficult for the courts to extend that provision to the proceedings under the Act."
After laying down that it would be permissible to file a second complaint, explaining why the earlier complaint could not be WP(C)37468/04 10
pursued and was dismissed for default, it was held: "18). We only intend to invoke the spirit of the principle behind the above dictum in support of our view that every court or
judicial body or authority, which has a duty to decide a lis between two parties,
inherently possesses the power to dismiss a case in default. Where a case is called up for hearing and the party is not present, the court or the judicial or quasi-judicial body is under no obligation to keep the
matter pending before it or to pursue the matter on behalf of the complainant who
had instituted the proceedings. That is not the function of the court or, for that matter of a judicial or quasi-judicial body. In the absence of the complainant, therefore, the court will be well within its jurisdiction to dismiss the complaint for non-prosecution. So also, it would have the inherent power and jurisdiction to restore the complaint on WP(C)37468/04 11
good cause being shown for the non-
appearance of the complainant."
It is relying on this paragraph learned counsel appearing for petitioner argued that the Consumer Redressal Forum has the power to restore complaint which was dismissed for non appearance of the complainant. The learned counsel pointed out that taking note of the earlier decision in Jyotsana Aravindkumar Shah's case where a contrary view was taken, a subsequent Bench of the Apex Court in Rajeev Hitendra Pathan v. Achyut Kashinath Karekar (2007 (7) SCC 667) has referred the question to a larger Bench and therefore it is to be found that Consumer Redressal Forum has the power to restore a complaint which was dismissed for default. In Rajeev Hitendra Pathan's case (supra) taking note of paragraph 18 of the judgment in New India Assurance case (supra) it was held: "In the latter case i.e. New India Assurance case reference was not made to the earlier decision in Jyotsana case. Further the effect of the amendment to the Act in 2003 whereby Section 22A was introduced has the effect of conferment of power of restoration on the WP(C)37468/04 12
National Commission, but not to the State Commission. In view of the divergence of views expressed by coordinate Benches, we refer the matter to a larger Bench to consider the question whether the State Commission has the power to recall the ex parte order. Records be placed before the Hon'ble Chief Justice of India for appropriate orders." Hence it cannot be said that Apex Court has held that District Forum has jurisdiction to restore a complaint dismissed for default. The learned counsel appearing for the petitioner relied on the decision of a learned Single Judge of this Court and submitted that it was held that District Forum has the power to set aside the exparte order. In St. Joseph's Hospital v. Jimmy (2001 (2) KLT 514) the learned Single Judge also held that power to set aside the exparte order under Order IX was not given to the District Forum. True, relying on New India Assurance case it was observed that District Forum has inherent power to restore the complaint dismissed for default. But that was not the question decided in the said case. The National Consumer Disputes Redressal Commission in Harish Chandra WP(C)37468/04 13
v. The New India Assurance Co. Ltd. (2008 (2) CPR 249 (NC) also held that Section 17 of the Consumer Protection Act does not empower a State Commission to review or recall its own final order or a complaint.
10. As stated earlier, when provisions of Order IX of Code of Civil Procedure was not made applicable to the Consumer Redressal Forum under Section 13 and only other provisions are made applicable, Consumer Redressal Forum has no power to restore a complaint dismissed for default to file. It is more so when sub rule 2 (b) of Section 13 enables the District Forum to dismiss a complaint on failure of the complainant to appear before it. If that be so, it can only be found that petition filed before District Redressal Forum is not maintainable. If so remedy of the petitioner is to file an appeal challenging the order dismissing the complaint for default as provided under Section 15 of the Act.
11. Though learned counsel for the petitioner relying on the decision of Apex Court in Kishore Kumar Khaitan And Another v. Praveenkumar Singh ((2006) 3 SCC 312) argued that District Consumer Redressal Forum did not properly consider the application to restore the complaint and hence the WP(C)37468/04 14
supervisory jurisdiction of this Court is to be invoked. Facts of that case are different. In that case trial Court found that there was no urgency to grant an exparte order of injunction and appellate Court in the appeal did not consider the question in the proper manner. It is under such circumstances their Lordships in paragraph 13 held as follows:- "The jurisdiction under Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction."
12. Though learned counsel for petitioner also relied on WP(C)37468/04 15
the decisions of Apex Court in Hirday Narain v. I.T. Officer, Bareilly (AIR 1971 SC 33) in that case it was found that an order under Section 35 of Income Tax is not appealable and a revision before the Commissioner of Income Tax is maintainable and on the date when the petition was filed before the High Court the period for moving a revision before the commissioner had not expired. In such circumstances it was held: "12). We are unable to hold that because a revision application could have been moved for an order correcting the order of the Income-tax Officer under Section 35, but was not moved, the High Court would be
justified in dismissing as not maintainable the petition, which was entertained and was heard on merits."
13. Though reliance was placed on the Division Bench decision of this Court in Thressiamma v. Union of India (1999 (2) KLT 683) what was held therein was only that existence of an alternate remedy is not a bar to the maintainability of a writ petition, if there is violation of the fundamental rights or violation of any Act or Rules or violation of WP(C)37468/04 16
the principles of natural justice. The Division Bench following the dictum laid down by the Apex Court in M/s.Baburam Prakash Chandra Maheswari v. Antarim Zila Parishad(AIR 1969 SC 556) held that if there is violation of the principles of natural justice or violation of any rule or Act, dismissal of writ petition on the ground of alternate remedy is not proper. When under Section 13(2) (c) the District Forum is competent to dismiss a complaint on the failure of complainant to appear, it cannot be said that the dismissal of the complaint was in violation of any rule or Act. When the Act does not empower the District Forum, to restore a complaint to file dismissal of the petition for restoration, whatever be the ground for dismissal, is also not an act in violation of the Act or the Rules. Sub section 3 of Section 13 specifically provides that "no proceedings complying with the procedure laid down in sub section 1 and 2 shall be called in question in any Court on the ground that the principles of natural justice have not been complied with". Therefore the order cannot be challenged on the ground of violation of principles of natural justice also. Hence fact that writ petition was earlier admitted is also not a ground to quash the order of the District Forum which is legal and regular. In WP(C)37468/04 17
such circumstances, the writ petition is not maintainable. Petitioner is permitted to challenge the order of the Redressal Forum by filing an appeal as provided under Section 15 or a revision as provided under Section 17 of the Act. If the appeal or revision is filed within two weeks from today, the authority shall receive the same and dispose it in accordance with law. Writ petition is dismissed.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-
==========================================================================

Rajeev Hitendra Pathak & Ors. vs Achyut Kashinath Karekar & Anr on 19 August, 2011
Author: D Bhandari
Bench: Dalveer Bhandari, Mukundakam Sharma, Anil R. Dave
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4307 OF 2007
Rajeev Hitendra Pathak & Others ... Appellants Versus
Achyut Kashinath Karekar & Another ... Respondents WITH
CIVIL APPEAL NO.8155 OF 2001
M.O.H. Leathers ... Appellants Versus
United Commercial Bank ... Respondents J U D G M E N T
Dalveer Bhandari, J.
1. These appeals emanate from the order dated 16.11.2005 in Revision Petition No.551 of 2005 and order dated 12.7.2001 in Miscellaneous Petition No.1 of 2001 in Original Petition No.110 of 1993 passed by the National Consumer Disputes Redressal Commission, New Delhi.
2

2. The main question which arises for consideration is whether the District Consumer Forums and the State Commissions have the power to set aside their own ex parte orders or in other words have the power to recall or review their own orders?

3. The questions of law involved in both the appeals are identical, therefore, we deem it appropriate to dispose of both these appeals by a common judgment.

4. Brief facts necessary to dispose of these appeals are recapitulated as under:
CIVIL APPEAL NO.4307 OF 2007

5. Smita Achyut Karekar was admitted to Ashirwad Nursing Home as she was suffering from the ailment of slip disc. The operation was performed on 8.10.1997. It was noticed, at about 3.45 pm on that day, that her blood vessels had ruptured accidentally during the surgery. She was declared dead at 5.35 pm.

6. The complainants issued a legal notice on 24.7.1999. Reply to the legal notice was sent on 7.8.1999. The complainants filed complaint alleging deficiency in service and 3
claimed compensation of Rs.15,00,000/-. The complainants did not take necessary steps to remove objection and to complete procedure under the Consumer Protection Act, 1986. The State Commission, Maharashtra issued notice to the opposite parties/appellants herein on 10.02.2004. On 9.9.2004, the State Commission dismissed the complaint for want of prosecution. On 04.11.2004, the complainants filed an application for recalling 9.9.2004 order and consequently the State Commission recalled the order dated 9.9.2004 and restored the complaint.

7. The appellants aggrieved by the said order preferred a Revision Petition No.551 of 2005 before the National Consumer Disputes Redressal Commission, New Delhi. The appellants in the revision petition made two main arguments before the Commission : firstly, that the State Commission did not have the power to restore the complaint and, secondly, that the State Commission restored the complaint without issuing notice to the appellants. The National Commission dismissed the revision petition which has been challenged by the appellants before this Court.
4

8. The appellants relied on the judgment in the case of Jyotsana Arvind Kumar Shah & Others v. Bombay Hospital Trust (1999) 4 SCC 325. In this case, the Court held that the State Commission did not have the power to review or recall its ex parte order.

9. In New India Assurance Co. Ltd. v. R. Srinivasan (2000) 3 SCC 242, this Court took the contrary view and held that the State Commission could review or recall its ex parte order.

10. In the instant case, a two-Judge Bench of this Court vide judgment and order dated 17.9.2007 reported in 2007 (11) SCALE 166 noted the controversy and observed as under: "5. In Jyotsana's case it was observed at para 7 as follows:
"We heard the learned counsel on both sides for quite some time. When we asked
the learned counsel appearing for the respondent to point out the provision in the Act which enables the State
Commission to set aside the reasoned order passed, though ex parte, he could not lay his hands on any of the provisions
in the Act. As a matter of fact, before the State Commission the appellants brought
to its notice the two orders, one passed by the Bihar State Commission in Court
Master, UCO Bank v. Ram Govind
5
Agarwal 1996 (1) CPR 351 and the other
passed by the National Commission in Director, Forest Research Institute v. Sunshine Enterprises 1997 (1) CPR 42 holding that the redressal agencies have no power to recall or review their ex parte order. The State Commission had
distinguished the abovesaid orders on the
ground that in those two cases the opponents had not only not appeared but
also failed to put in their written statements. In other words, in the case on hand, according to the State
Commission, the opponent (respondent) having filed the written statements, the failure to consider the same by the State
Commission before passing the order would be a valid ground for setting aside
the ex parte order. The State Commission, however, fell into an error in
not bearing in mind that the Act under which it is functioning has not provided it with any jurisdiction to set aside the ex parte reasoned order. It is also seen from
the order of the State Commission that it
was influenced by the concluding portion
of the judgment of the Bombay High Court to the effect that the respondent (writ petitioner) could approach the appellate authority or make an appropriate application before the State Commission for setting aside the ex parte
order, if permissible under the law. Here again, the State Commission failed to appreciate that the observation of the High Court would help the respondent, if
permissible under the law. If the law does
not permit the respondent to move the application for setting aside the ex parte order, which appears to be the position, the order of the State Commission setting
aside the ex parte order cannot be 6
sustained. As stated earlier, there is no dispute that there is no provision in the Act enabling the State Commission to set
aside an ex parte order."

6. Subsequently, in New India Assurance case this Court appears to have taken a different view as it is evident from what has been stated in para 18, the same reads as follows:
"We only intend to invoke the spirit of the principle behind the above dictum in
support of our view that every court or judicial body or authority, which has a duty to decide a lis between two parties, inherently possesses the power to dismiss
a case in default. Where a case is called up for hearing and the party is not present, the court or the judicial or quasi-judicial body is under no obligation
to keep the matter pending before it or to
pursue the matter on behalf of the complainant who had instituted the
proceedings. That is not the function of the court or, for that matter of a judicial or quasi-judicial body. In the absence of the complainant, therefore, the court will
be well within its jurisdiction to dismiss the complaint for non-prosecution. So also, it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for the non- appearance of the complainant."

7. In the latter case i.e. New India Assurance case reference was not made to the earlier decision in Jyotsana case. Further the effect of the amendment to the Act in 2003 whereby Section 22A was introduced has the effect of conferment of power of restoration on the National Commission, but not to the State Commission. In view of the divergence of views expressed by coordinate 7
Benches, we refer the matter to a larger Bench to consider the question whether the State Commission has the power to recall the ex parte order. Records be placed before the Hon'ble Chief Justice of India for appropriate orders."
11. We have been called upon to decide whether the State Commission has the power to recall an ex parte order.
12. Shri Siddharth Bhatnagar, learned senior counsel appearing for the appellants in Civil Appeal No.4307 of 2007 submitted that the Consumer Tribunals set up under the Consumer Protection Act, 1986 are creatures of that Statute and derive their powers only from the express provisions of the Statute. He has drawn our attention to various provisions of the Consumer Protection Act, 1986 to strengthen his submission. He referred to Section 13(4) of the Consumer Protection Act, 1986 which reads as under:
"13 (4) For the purposes of this Section, the District Forum shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit in respect of the following matters, namely:-
(i) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath;
(ii) the discovery and production of any document or other material object produced as evidence; 8
(iii) the reception of evidence on affidavits; (iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;
(v) issuing of any commission for the examination of any witness; and
(vi) any other matter which may be prescribed."
13. Mr. Bhatnagar has also drawn our attention to Regulation 26(1) of the Consumer Protection Regulations, 2005, framed in exercise of powers conferred by Section 30-A of the Consumer Protection Act, 1986. Regulation 26(1) reads as follows:
"26. Miscellaneous-- (1) In all proceedings before the Consumer Forum, endeavour shall be made by the parties and their counsel to avoid the use of provisions of Code of Civil Procedure, 1908 (5 of 1908):
Provided that the provisions of the Code of Civil Procedure, 1908 may be applied which have been referred to in the Act or in the rules made thereunder."

14. Mr. Bhatnagar submitted that only very few provisions of the Code of Civil Procedure have been made applicable to the proceedings before the District Forums and the State Commissions under Section 18 of the Consumer Protection 9
Act, which applies Sections 13 and 14 to the State Commission and the National Commission (under Section 22(1) are those under Section 13(4)). He relied on the judgment of this Court in Morgan Stanley Mutual Fund v. Kartick Das (1994) 4 SCC 225 to strengthen his argument that the consumer tribunals can derive powers only from the express provisions in the Statute. In the said case, the Court observed as under:
"44. A careful reading of the above discloses that there is no power under the Act to grant any interim relief of (sic or) even an ad interim relief. Only a final relief could be granted. If the jurisdiction of the Forum to grant relief is confined to the four clauses mentioned under Section 14, it passes our comprehension as to how an interim injunction could ever be granted disregarding even the balance of convenience."

15. Mr. Bhatnagar also placed reliance on another judgment of this Court in Gulzari Lal Agarwal v. Accounts Officer (1996) 10 SCC 590. In this case, the Court relied on earlier judgment of this Court in the case of Morgan Stanley Mutual Fund and observed that the Consumer Forum has no jurisdiction or power to pass any interim order pending disposal of the original complaint filed before it. 10

16. Mr. Bhatnagar relied on Section 17 of the Act which deals with the jurisdiction of the State Commission. Sections 17-A and 17-B were added by the 2002 Amendment of the Act dealing with the "Transfer of Cases" and "Circuit Benches" respectively. The objects and reasons for introducing the said provisions by way of the said amendment were as follows: "Objects and Reasons-- Clause 15 (old) seeks to insert a new Section 17-A to empower the State Commission to transfer a case from one District Forum to another District Forum within the State if required for the ends of justice. It also seeks to insert another new Section 17-B to enable the State Commissions to hold Circuit Benches."

17. Mr. Bhatnagar also relied on Section 22 of the Act, which deals with the power and procedure of the National Commission. Before the 2002 Amendment, the said provision was as follows:
"22. Power of and procedure applicable to the National Commission-- The National Commission shall, in the disposal of any complaints or any proceedings before it, have--
a) the powers of a Civil Courts as specified in Sub-Sections (4), (5) and (6) of Section 13; b) the power to issue an order to the opposite party directing him to do any one or more of the things referred to in clauses (a) to (i) of Sub-Section (1) of Section 14,
11
and follow such procedure as may be prescribed by the Central Government."

18. After the 2002 Amendment, Section 22 of the Act now reads as follows:
"22. Power and procedure applicable to the National Commission -- (1) The provisions of Sections 12, 13 and 14 and the rules made thereunder for the disposal of complaints by the District Forum shall, with such modifications as may be considered necessary by the Commission, be applicable to the disposal of disputes by the National Commission.
(2) Without prejudice to the provisions contained in Sub-Section (1), the National Commission shall have the power to review any order made by it, when there is an error apparent on the face of record."

19. The 2002 Amendment also introduced Section 22A which reads as follows:
"22A. Power to set aside ex parte orders.-Where an order is passed by the National Commission ex parte against the opposite party or a complainant, as the case may be, the aggrieved party may apply to the Commission to set aside the said order in the interest of justice."

20. Mr. Bhatnagar contended that Section 22(2) was introduced in 2002 to give the National Commission the power to review its own order. This power could not have been used 12
by the Commission before the amendment. After amendment, now the Commission has specific power to set aside an ex parte order. This power has only been given to the National Commission and not extended to the District Forums or the State Commissions. If the legislature intended to give this power to the State Commissions and District Forums then it would have extended the same to those forums also.
21. Mr. Bhatnagar has also drawn our attention to the objects and reasons for carrying out the amendment which reads as follows:
"Objects and Reasons-- Clause 21 (old) seeks to substitute Section 22 so that the provisions of Sections 12, 13 and 14 and the rules made thereunder for the disposal of complaints by the District Forum, shall, with such modifications as may be considered necessary by the Commission, be applicable to the disposal of disputes by the National Commission. It also seeks to empower the National Commission to review any order made by it when there is an error apparent on the face of record. These provisions will make the powers and procedures in respect of the National Commission more explicit. It also seeks to insert new Sections 22-A, 22-B and 22-C and 22-D. New Section 22-A empowers the National Commission to set aside ex parte orders against the opposite party or complainant in the interest of justice........" 13

22. Mr. Bhatnagar submitted that the limited applicability of the provisions of the Civil Procedure Code to the Tribunals under the Act is under Section 13(4) of the Act. There is no power of review or recall under the said provision. Even under Section 13(4)(vi), no Rule has been framed in terms of Section 30(1) by the Central Government which provides power to review or recall of orders.

23. Learned senior counsel for the appellants also relied on M/s Eureka Estates (P) Ltd. v. A.P. State Consumer Disputes Redressal Commission and Others AIR 2005 AP 118 in which the Court observed that the District Forums and the State Commissions are entitled to exercise only such powers which are specifically vested in them under the Act and the Rules.

24. Mr. Bhatnagar submitted that it is evident from the Statement of Objects and Reasons of the Act that the purpose of the Act is to provide speedy and simple redressal to consumer disputes. It is for this reason that all the provisions of the Civil Procedure Code have not been extended to the Consumer Forums.
14

25. Mr. Bhatnagar further submitted that the salutary object of speedy and simple redressal under the Act is to be found inter alia in Sections 13(2) and (3) of the Act which provide for the procedure to be adopted by the forum in deciding the complaints admitted by it. The said provisions read as follows:
13. (2) The District Forum shall, if the complaints admitted by it under Section 12 relates to goods in respect of which the procedure specified in Sub- Section (1) cannot be followed, or if the complaint relates to any services,--
(a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum;
(b) where the opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute,--
(i) on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations
contained in the complaint, or
(ii) ex parte on the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Forum.
15
(c) where the complainant fails to appear on the date of hearing before the District Forum, the District Forum may either dismiss the complaint for default or decide it on merits. (3) No proceedings complying with the procedure laid down in Sub-Sections (1) and (2) shall be called in question in any court on the ground that the principles of natural justice have not been complied with."

26. Mr. Bhatnagar also relied on Section 12(3) of the Act which reads as follows:
"12(3) On receipt of a complaint made under Sub-Section (1), the District Forum may, by order, allow the complaint to be proceeded with or rejected:
Provided that a complaint shall not be rejected under this Sub-Section unless an opportunity of being heard has been given to the complainant: Provided further that the admissibility of the complaint shall ordinarily be decided within twenty- one days from the date on which the complaint was received."

27. Mr. Bhatnagar tried to explain the legislative intent behind introducing Section 22-A. According to him, only the National Commission has been given power to set aside ex parte orders and the same power has not been extended to the District Forums or the State Commissions because against the orders of the District Forums and the State Commissions, 16
appeal or revision can be filed before the State Commission and the National Commission respectively. But in the case of the orders of the National Commission, prior to the amendment, the parties were compelled to approach this Court even against the orders by which the cases were dismissed in default. It became extremely expensive and time consuming. In this view of the matter, it became imperative to give this power to the National Commission.
28. According to the counsel for the appellants, in New India Assurance Co. Ltd., this Court did not notice the earlier decision in Jyotsana's case. He submitted that the Tribunals constituted under the Consumer Protection Act, 1986 exercise only such powers as are expressly conferred by the provisions of the said Act and Rules framed thereunder. Since no power of review and recall was conferred on the District Forums and the State Commissions, they can exercise no such power.

29. The counter affidavit was filed by the respondents stating that the Commission was justified in setting aside the ex parte 17
order and restoring the respondents' complaint. The counter affidavit also states that the respondents cannot be deprived of their right without contest on the basis of trivial technicalities.

30. The respondents relied upon the judgment of this Court in New India Assurance Co. Ltd. in which this Court held that the Consumer Courts have inherent powers to restore the complaints dismissed for default. It is also stated in the counter affidavit that due to old age, respondent no.1 lost track of the case and therefore, the State Commission was justified in setting aside the ex parte order in order to ensure that justice is done to the parties.
CIVIL APPEAL NO.8155 OF 2001

31. In Civil Appeal No.8155 of 2001, the National Commission passed an ex parte order and in the appeal against the order, this Court gave liberty to the appellants to approach the Commission for setting aside the ex parte order. Thereafter, an application was filed by the complainants for review of the order. The Commission vide order dated 12.7.2001 (relied on the judgment of Jyotsana's case) 18
dismissed the application. Aggrieved by the said order, the appellant has filed this appeal.

32. Mr. M.S. Ganesh, learned senior counsel appearing on behalf of the appellants in Civil Appeal No.8155 of 2001 submitted that the National Commission has implied and inherent power to recall the order dated 30.5.1996 passed in Original Petition No.110 of 1993.

33. Mr. Ganesh also submitted that the notice of hearing sent by the National Commission was never served on the counsel for the appellants yet the National Commission proceeded to an ex parte decision on the appellants' complaint and dismissed it on the ground of limitation.
34. According to Mr. Ganesh, the decision in Jyotsana's case is manifestly per incuriam. It does not even refer to the doctrine of implied powers and was not aware of its applicability. The later decision in New India Assurance Co. Ltd. is expressly mindful of the doctrine. He submitted that an external aid to the interpretation of the Consumer Protection Act, 1986 also reinforces the above construction of the Act.
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35. We have carefully scrutinized the provisions of the Consumer Protection Act, 1986. We have also carefully analyzed the submissions and the cases cited by the learned counsel for the parties.

36. On careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.

37. The legislature chose to give the National Commission power to review its ex parte orders. Before amendment, against dismissal of any case by the Commission, the consumer had to rush to this Court. The amendment in Section 22 and introduction of Section 22-A were done for the convenience of the consumers. We have carefully ascertained the legislative intention and interpreted the law accordingly. 20

38. In our considered opinion, the decision in Jyotsana's case laid down the correct law and the view taken in the later decision of this Court in New India Assurance Co. Ltd. is untenable and cannot be sustained.

39. In view of the legal position, in Civil Appeal No.4307 of 2007, the findings of the National Commission are set aside as far as it has held that the State Commission can review its own orders. After the amendment in Section 22 and introduction of Section 22A in the Act in the year 2002 by which the power of review or recall has vested with the National Commission only. However, we agree with the findings of the National Commission holding that the Complaint No.473 of 1999 be restored to its original number for hearing in accordance with law.

40. There has been considerable delay in disposal of the complaint. Therefore, we direct the State Commission to dispose of the Complaint No.473 of 1999 [in Civil Appeal No.4307 of 2007] as expeditiously as possible and in any event within three months from the date of the communication of this order.
21

41. Similarly, in Civil Appeal No.8155 of 2001, we set aside the impugned order and direct the National Commission to dispose of the Original Petition No.110 of 2003 de novo as expeditiously as possible and in any event within three months from the date of the communication of this order.
42. Both the appeals are disposed of accordingly. The parties are directed to bear their own costs.
................................J.
(Dalveer Bhandari)
................................J.
(Mukundakam Sharma)
...............................J.
(Anil R. Dave)
New Delhi;
August 19, 2011

The latest decision speaks negatively about the matter,though the civil procedure code provides for restoration of cases dismissed for default but when discussed about the consumer protection act civil procedure code is applicable to only for some part and not extensively.



Wednesday, November 30, 2011

General Manager, Telecom Vs. M.Krishnan & Another

The case following is about whether the consumer forums have jurisdiction to decide telecom disputes and there are many different views regarding this are seen,and this is important when Honorable Supreme Court also opined that the arbitration act being a special enactment has  upperhand to general laws.
 
 
 
 
 
 
 
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FEROZEPUR.
QUORUM
                                    President                  :           Shri Sanjay Garg
                                    Member                    :           S. Tarlok Singh
C.C. No.180 of 2009
                                                                                    Date of Institution: 9.4.2009
                                                                                    Date of Decision: 11.9.2009 
Lakhbir Singh, 
aged about 34 years, son of Mohinder Singh 
son of Harnam Singh, 
resident of Basti Kamboj Nagar, Ferozepur City.                   ……. Complainant 
                                                Versus 
1.        Aman Arora Telecom, Dulchi Ke Road, Opposite Guruduwara
Market, Basti Kamboj Nagar, Ferozepur City, Tehsil and District 
Ferozepur, through its Proprietor Aman Arora. 
2.        Bharat Sanchar Nigam Limited, Telecom (Mobile), Ferozepur Cantt,
through its General Manager.
                                                                                                      ……… Opposite parties
                Complaint under Section 12 of the Consumer Protection Act, 1986.
 
                                              O R D E R
SANJAY GARG, PRESIDENT:-
                        Complainant Lakhbir Singh has filed the present complaint against Aman Arora Telecom (herein after referred to as opposite party No.1) and Bharat Sanchar Nigam Limited (herein after referred to as opposite party No.2) pleading that the complainant got a mobile telephone connection No.94645-59188 from opposite party No.1 after paying Rs.200/- on 6.2.2009 and at that time the complainant had given his proof of identity i.e. one snap and photo copy of voter card to opposite party No.1. Opposite party No.1 issued a SIM card of the above said mobile connection to the complainant and told that the validity of the same would be three months with the value of Rs.100/- talk time. After that the said mobile connection was activated and it was running up to 1.3.2009, but on 2.3.2009, opposite party No.1 disconnected the connection of the complainant. On enquiry, the complainant came to know that his mobile connection has been disconnected for want of identity proof. On 3.3.2009, the complainant again submitted the same proof i.e. one snap and one photo copy of the voter card to the opposite parties and opposite party No.2 promised that the mobile connection in question will be activated again up till evening of the same day. Thereafter, the complainant made several requests to the opposite parties, also served a legal notice dated 28.3.2009 upon the opposite parties regarding the above said negligence and deficiency in service, but the opposite parties have neither paid any heed to the requests of the complaint nor given any reply to the notice. Pleading deficiency in service on the part of the opposite parties, the complainant has claimed Rs.20,000/- as compensation for mental agony, pain and harassment and Rs.2200/- as litigation expenses. 
2.    Notice of the complaint was given to the opposite parties, who appeared and filed their separate written replies to the complaint. Opposite party No.1, in its written reply, has pleaded that the complainant got a mobile telephone connection No.94639-59188 from opposite party No.1 on 6.2.2009 and had given his identity proof i.e. one snap and photo copy of voter card and opposite party No.1 issued SIM card of the mobile connection and told that as per the norms and conditions of the company, the validity was of three months with talk time worth Rs.100/-. After obtaining the proof required for the connection, the same was forwarded to BSNL for activation of the connection and the said connection was activated. It has been further pleaded that after submission the identity proof, the connection in question was activated by the BSNL and opposite party No.1 has got no role to play thereafter. The verification of the identity proof is done by the company and in case of negative verification, the company can seek the identity proof other than the furnished at the time of getting the connection. Denying any deficiency in service on the part of opposite party No.1, dismissal of the complaint has been prayed for.
3.    Opposite party No.2, in its written reply, has pleaded that opposite party No.1 is not an authorized agent of opposite party No.2 rather M/s Aneja Enterprises, Jalalabad (W) is the authorized dealer. Prepaid mobile connections are given to consumers after the completion of requisite formalities and the dealer is to activate the same. The SIM in question was given to M/s Aneja Enterprises and not to opposite party No.1. It has been further pleaded that the said SIM is in working condition. Other allegations of the complaint have been denied.
4.  Parties led evidence.
5. We have heard the complainant in person and learned counsel for the opposite parties and have also gone through the file.
6.  At the outset, the learned counsel for opposite party No.2 has produced a recent judgement of the Hon’ble Supreme Court of India styled as General Manager, Telecom Versus M. Krishnan & Another, Civil Appeal No.7687 of 2004, decided on 1.9.2009 and submitted that in view of the above said authority, this Forum has no jurisdiction to entertain and decide the present complaint. 
7.  So before adjudicating the matter on merits, it has become necessary to decide as to whether this Forum, established under the Consumer Protection Act, has jurisdiction to entertain the disputes relating to mobile connections. The Hon’ble Supreme Court of India in the above said judgement has held that under Section 7-B of the Indian Telegraph Act, 1885, the disputes concerning any telegraph line, appliance or apparatus are required to be referred to an Arbitrator appointed by the Central Government. Relying upon another authority of the Hon’ble Supreme Court styled as “Chairman, Thiruvalluvar Transport Corporation Versus Consumer Protection Council, (1995) 2 SCC 479”, the Hon’ble Supreme Court of India has further held that special law overrides the general law.
8.  In full respect to the Hon’ble Supreme Court of India, before relying upon the above said authority, we would like to discuss another law/legislature enactments made by the Parliament and also the various other authorities on the question relating to the jurisdiction of the Consumer Forums. 
9.  So far the provisions of The Indian Telegraph Act, 1885 are concerned, under Section 3 (1AA), the word ‘Telegraph’ has been defined as under:- 
   “telegraph” means any appliance, instrument, material or apparatus used or capable of use for transmission or  reception of signs, signals, writing, images, and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, Radio waves or Hertzian waves, galvanic,
Explanation – “Radio waves” or “Hertzian waves” means electro magnetic waves of frequencies lower than 3,000 giga-cycles per second propagated in space without artificial guide.” 
10. The instrument named telephone, through which one person could directly talk with another person at a distant place without seeing personally face to face, was invented by Alexander Graham Bell in the year 1876. In 1878, the first telephone exchange was established at New Haven. In the year 1882, first telephone exchange was opened at Calcutta in India having only 93 subscribers. In the year 1885, when the Indian Telegraph Act was enacted, telephone facility was not available to the people at large in India. Through telegraph system, certain messages were used to be conveyed through signs, signals and sounds etc. Even the facility was not available to people at large, but was used in emergency cases through the specialized facility offered by the Government authorities. With the advancement of  technology, new inventions were made and landline telephone services were made available to the consumers at large. Thereafter, mobile telephone technology stepped into to serve the people and it was indeed a revolution in the field of telecommunication. 
11.  Section 3 (1AA), as reproduced above, was introduced in the said Act in the year 1961 by way of amendment to the parent Act of 1885. In the year 1961, the mobile technology had not been developed in India. Mobile phones were formally launched in India in August, 1995. With the advancement of the technology, the facility of phones reached to the consumers at large. With the changed circumstances, the law relating to telecommunication has also been changed and it must be changed with the changed circumstances, otherwise the legal system would fall flat and the people would become violators of law. 
12. Several mobile service providers have been granted licenses to provide mobile telephone services to the consumers. To regulate the telecommunication services, adjudicate disputes, dispose of appeals and to protect the interest of service providers and consumers of the telecom sector and for matters connected therewith, the Parliament has passed “The Telecom Regulatory Authority of India Act, 1997”. Under the Telecom Regulatory Authority of India Act, 1997, the ‘telecommunication services’ have been defined, which for the purpose of facilitation is reproduced as under:-
   “2.      Definitions.-(1) In this Act, unless the context otherwise requires - 
    (k) “telecommunication service” means service of any  description (including electronic mail, voice mail, data services, audio tax services, video tax services, radio paging and cellular mobile telephone services) which is made available to users by means of any transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature, by wire, radio, visual or other electromagnetic means   but shall not include broadcasting services:
Provided that the Central Government may notify other service to be telecommunication service including broadcasting services.”
13.   Under the said Telecom Regulatory Authority of India Act, 1997, a provision has been made for establishment or incorporation of an authority namely Telecom Regulatory Authority of India to regulate the functioning of telecommunication service providers and other matters including and relating to mobile telephones also. Under Section 14 of the said Act, a provision has been made for establishment of Appellate Tribunals to adjudicate any dispute relating to the telecommunication services. For the purpose of facilitation, Section 14 of the Telecom Regulatory Authority of India Act, 1997 is reproduced as under:- 
“14. Establishment of Appellate Tribunal – The Central Government shall, by notification, establish an Appellate  Tribunal to be known as the Telecom Disputes Settlement  and Appellate Tribunal to –
(a)              adjudicate any dispute –
(i)                between a licensor and a licensee;
(ii)              between two or more service providers;
(iii)            between a service provider and a group of consumers:
Provided that nothing in this clause shall apply in respect of matters relating to -
(A)      the monopolistic trade practice, restrictive trade practice and unfair trade practice which are subject to the jurisdiction of the Monopolies and Restrictive Trade Practices Commission established under sub-section (1) of Section 5 of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969);
(B)      the complaint of an individual consumer maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Redressal Commission established under section 9 of the Consumer Protection Act, 1986 (68 of 1986);
(C)    dispute between telegraph authority and any other person referred to in sub-section (1) of section 7B of the Indian Telegraph Act, 1885 (13 of 1885)”.
14.  From the bare perusal of the above said provisions, now it is clear beyond doubt that the telephone services and to be more Cellular mobile telephone services have been specifically covered under the Telecom Regulatory Authority of India Act, 1997 and the provisions of the said Act are in addition to the previous Indian Telegraph Act, 1885. From perusal of Section 14 (b), it is very much clear that even when a consumer approaches the Consumer Disputes Redressal Forum, then the provisions of the Telecom Regulatory Authority of India Act, 1997 or the jurisdiction of the Appellate Tribunals established under the Telecom Regulatory Authority of India Act, 1997 ceases, rather the provisions of the Consumer Protection Act get precedence over the powers vested with the Appellate Tribunals established under the Telecom Regulatory Authority of India Act, 1997.
15. The Telecom Consumers Protection and Redressal of Grievances Regulations, 2007 have come into force vide Notification dated 4th May 2007 and have been published in Gazette of India. Under Regulation No.1 Clause (3), it has been provided that these regulations shall apply to –
“(a)     all service providers including Bharat Sanchar Nigam Limited and Mahanagar Telephone Nigam Limited, being the companies registered under the Companies Act, 1956 (1 of 1956) providing –
                        (i)        Basic Telephone Service;
                        (ii)       Unified Access Services;
                        (iii)      Cellular Mobile Telephone Service.” 
The ‘Basic Telephone Service’ has been defined under Section 2 (g) of the above said Regulations. The meaning of ‘consumer’ has also been defined. For the sake of convenience, Section 2 (d), 2 (g) and 2 (h) of the above said Regulations are reproduced as under :-
   “2. Definitions – In these se regulations, unless the context otherwise requires - 
      (d)   “Basic Telephone Service” covers collection, carriage, transmission and delivery of voice or non-voice  messages over licensee’s Public Switched Telephone  Network in licensed service area and includes provision  of all types of services except those requiring a separate licence;
       (g)       “Cellular Mobile Telephone Service” - 
(i)        Means telecommunication service provided by means of a telecommunication system for the conveyance of messages through the agency of wireless telegraphy where every message that is conveyed thereby has been, or is to be, conveyed by means of a telecommunication system which is designed or adapted to be capable of 
being used while in motion;
(ii)       Refers to transmission of voice or non-voice messages over Licensee’s Network in real time only but service does not cover broadcasting of any messages, voice or non-voice, however, Cell Broadcast is permitted only to the subscribers of the service,
(iii)      in respect of which the subscriber (all types, pre-paid as  well as post-paid) has to be registered and authenticated at the network point of registration and approved numbering plan shall be applicable;
(h)        “consumer” means a consumer of a service provider falling in clause (a) or clause (b) of sub-regulation (3) of  regulation 1 and includes its customer and subscriber.”
16.   Section 25 of the above said Regulations is very much relevant, which for the sake of convenience is reproduced as under:-
      “25.    Right of consumers to seek redressal under the Consumer Protection Act, 1986 or any other law for the time being in force – 
(1) The provisions of these regulations are in addition to any right conferred upon the consumers under the Consumer Protection Act, 1986 (68 of 1986) or any other law for the time being in force.
  (2)       Any consumer may, at any time -
              (a)       during pendency of redressal of his grievance, whether by filing of complaint or appeal, under these regulations;
or
(b)       before or after filing of complaint or appeal, under these                       regulations, exercise his right conferred upon him under the Consumer Protection Act, 1986 (68 of 1986) or any other law for the time being in force and seek redressal of his grievance under that Act or law.” 
17.  Section 27 of the above said Regulations is also very much important, which for the sake of convenience is reproduced as under:-
         “27.    These regulations not to apply in certain cases –
         Nothing contained in these regulations shall apply to any matter or issue for which –
(a)    any proceedings, before any court or tribunal or under the Consumer Protection Act, 1986 (68 of 1986) or any other law for the time being in force, are pending; or
(b)  a decree, award or an order has already been passed  by any competent court or tribunal or authority or forum or commission, as the case may be.”
18.    From the bare perusal of the above said Regulations framed by the Telecom Regulatory Authority of India exercising the powers conferred upon it under Section 36 and Section 11 of the Telecom Regulatory Authority of India Act, 1997, it is abundantly clear that the provisions of the Consumer Protection Act, 1986 prevail over the Telecom Regulatory Authority of India Act, 1997 and the jurisdiction and powers of the Consumer Disputes Redressal Forums are over and above the jurisdiction and powers of the Tribunals established for the purpose of adjudication of disputes relating to telecommunication services.
19. It is settled law that the law enacted by the Parliament cannot be changed or made useless by judicial interpretation. The provisions of the enactments have to prevail over the judicial decisions. The question of interpretation comes only when the provisions of legislative enactments are either not clear, ambiguous or cannot depict the true meaning. When the provisions of the legislative enactments are plain, clear and unambiguous, then these cannot be negativated through judicial interpretation. Reliance can be placed upon various authorities of the Hon’ble Supreme Court of India on this point. The Hon’ble Supreme Court in “State of U.P. & Others Versus Jeet S. Bisht & Anr., 2007 (3) CLT 10”, wherein the Hon’ble Supreme Court has specifically held that court cannot add or substitute word in a statute. By judicial verdict the court cannot amend the law made by the Parliament or State Legislature. It has been further held by the Hon’ble Supreme Court in the said authority that mere a direction of the Hon’ble Supreme Court without laying down any principle of law is not a precedent. It is only where the Hon’ble Supreme Court lays down a principle of law that will amount to a precedent. The courts are subordinate to law and not above the law.
20.   So far the question as to whether the Consumer Protection Act, 1986 is a special legislation or a general law, the Hon’ble Supreme Court of India has given its view in various authorities, some of which we will discuss hereinafter. However, before discussing the authorities, we would like to discuss certain provisions of the Consumer Protection Act, 1986. 
    “1.      Short title, extent, commencement and application – 
                   (1)       This Act may be called the Consumer Protection Act,1986.
   (4)       Save as otherwise expressly provided by the Central                       Government by notification, this Act shall apply to all goods and services.
              2.    Definitions – (1) In this Act, unless the context otherwise                                     Requires --
(o)      “service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board, or lodging or both housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
3. Act not in derogation of any other law – The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force”.
21.    So from the perusal of the above said provisions of the Consumer Protection Act, 1986, it is quite clear that the provisions of the Consumer Protection Act, 1986 apply to all type of goods and all services availed by the consumers against consideration paid or promised. Section 1 (iv) of the Consumer Protection Act, 1986 is of wide connotation. 
22.     The Hon’ble Supreme Court of India in “Secretary, Thirumurugan Co-operative Agricultural Credit Society Versus M. Lalitha (Dead) through LRs. and others, 2004 (1) CLT 456”, wherein an objection was raised as to the jurisdiction of the Consumer Disputes Redressal agencies in view of the bar/arbitration clause contained in Section 90 and Section 156 of the Tamil Nadu Co-operative Societies Act, 1983, the Hon’ble Supreme Court of India has held that merely because the rights and liabilities are created to the appellate society under the Co-operative Societies Act, 1983 and Forums are provided for adjudicating the dispute between them, it cannot take away or exclude the jurisdiction conferred on Forum under the Consumer Protection Act, 1986 expressly and intentionally to serve a definite cause in terms of the objects and reasons of the Act. The Hon’ble National Commission was held right in holding that the view taken by the Hon’ble State Commission that the provisions under 1983 Act relating to reference of disputes to arbitration shall prevail over the provisions of 1986 Act, is incorrect and untenable. The authority Chairman, Thiruvalluvar Transport Corporation Versus Consumer Protection Council, (1995) 2 SCC 479, relied upon in the authority General Manager, Telecom Versus M. Krishnan & Another (supra), has been discussed and distinguished by the Hon’ble Supreme Court in the above said authority. The Hon’ble Supreme Court in para 11 and 12 of the judgment has observed as under:-
“(11)  From the statement of objects and reasons and the scheme of 1986 Act, it is apparent that the main objective of the Act is to provide for better protection of the interest of the consumer and for that purpose to provide for better redressal mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve the purpose of the Act, various quasi judicial forums are set up at the district, State and National level with wide range of powers vested in them. These quasi judicial forums, observing the principles of natural justice, are empowered to give relief of a specific nature and to award, wherever ‘appropriate, compensation to the consumers and to impose penalties for non-compliance of their orders.
(12)  As per Section 3 of the Act, as already stated above, the provisions of the Act shall be in addition to and not in derogation to any other provisions of any other law for the time being in force. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, better the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional/extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is clear bar”.
So as per the above said authority, despite provisions for referring the dispute to arbitration in the certain Acts/Laws, the object and purpose of the Consumer Protection Act cannot be frustrated as the provisions of the Consumer Protection Act are in addition and not in derogation of any other law in force. 
                        It was further held by the Hon’ble Supreme Court that if parties approach both the Forums created under any other Act and the 1986 Act (Consumer Protection Act, 1986), it is for the Forum under the 1986 Act to leave the parties either to proceed or avail the remedies before the other Forums depending upon the facts and circumstances of the case.
23.    The Hon’ble Supreme Court of India in “Neeraj Munjal and Others Versus Atul Grover (Minor) and another, 2005 (3) CLT 30”, in para 10 and 11 of the judgment has held that the courts could not deprive the parties from a remedy, which is otherwise available to them in law. It has been further held that a court of law has no jurisdiction to direct a matter to be governed by one statute when provisions of another statute are available. 
24.  In “State of U.P. & Others Versus Jeet S. Bisht & Anr., 2007 (3) CLT 10” (supra), the Hon’ble Supreme Court has held that the Consumer Protection Act, 1986 has been enacted for better protection of the interest of the consumers. The said Act is in addition to and not in derogation of the provisions of the any other law for the time being in force. The Act not only provides for new rights for the citizens of India in their capacity as consumers, it envisages their empowerment in this behalf. It is indisputably the solemn duty of the executive of both the Government of India and also the Government of State to implement the provisions of the Act in true letter and spirit. The Hon’ble Supreme Court in the above said authority has further held that the Consumer Protection Act embodies a certain value in protecting the interest of the consumers in the age of consumerism and the institution of consumer Fora is a specific mission in that behalf.
25.    In “State of Karnataka Versus Vishwahharathi House Building Coop. Society and others, 2003 (2) CLT 3”, where the constitutionality of the Consumer Protection Act, 1986 was challenged on various grounds, the three Judges Bench of the Hon’ble Supreme Court of India has held that the provisions of the Consumer Protection Act clearly demonstrate that it was enacted keeping in view a long felt necessity of protecting the common man from wrongs where for the ordinary law for all intent and purport had become illusory. In terms of the said Act, a consumer is entitled to participate in the proceedings directly as a result whereof his helplessness against a powerful business house may be taken care of. The Hon’ble Supreme Court of India further held that by reason of the said statute (Consumer Protection Act), quasi-judicial authorities have been created at the District, State and Central levels so as to enable a consumer to ventilate his grievances before a Forum where justice can be done without any procedural wrangles and hyper-technicalities. One of the objects of the said Act is to provide momentum to the consumer movement. While referring to the several provisions of the Consumer Protection Act and also discussing the various authorities, the Hon’ble three Judges Bench of the Supreme Court of India further held that by reason of provisions of Section 3 of the Act, the said Act supplements and not supplants the jurisdiction of the civil court or other statutory authorities. The Hon’ble Supreme Court of India while relying upon another authorities styled as “Fair Air Engineers Versus N.K. Modi, (1996) 6 SCC 385” and “Satpal Mohindra Versus Surindra Timber Stores, (1999) 5 SCC 696” has specifically held that the provisions of the said Act are required to be interpreted as broadly as possible. It has jurisdiction to entertain a complaint despite the fact that other Forum/courts would also have jurisdiction to adjudicate upon the matter. 
26.  The Hon’ble Supreme Court of India in “Ghaziabad Development Authority Versus Balbir Singh, 2004 (2) CLT 628”, has held that the Consumer Protection Act has a wide reach and the Commission has jurisdiction in case of services referred by the statutory and public authorities. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Hon’ble Supreme Court in the said authority further held that matters, which require immediate attention, should not be allowed to linger on. The consumer must not be made to run from pillar to post. Where there has been capricious or arbitrary or negligent exercise or non-exercise of power by an officer of the authority, the Commission/Forum has a statutory obligation to award compensation. 
27.    In Kishore Lal Versus Chairman, Employees’ State Insurance Corporation, 2007 (4) SCC 579, the Hon’ble Apex Court has observed:-
“It has been held in numerous cases of this Court that jurisdiction of the Consumer Fora has to be construed  liberally so as to bring many cases under it for their speedy    disposal. The Act being a beneficial legislation, it should receive a liberal construction.”
28.   The Hon’ble Supreme Court in “Fair Air Engineers Pvt. Ltd. & ANR. Versus N.K. Modi, III (1996) CPJ 1 (SC)” has held:-
    “Accordingly, it must be held that the provisions of the Act  are to be construed widely to give effect to the object and   purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in   derogation of any other law in force. It is true, as rightly contended by Mr. Suri, that the words “in derogation of the provisions of any other law for the time being in force”would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of  the provisions of the Arbitration Act. Prima facie, the  contention appears to be plausible but on construction and  conspectus of the provisions of the Act we think that the  contention is not well founded. The Parliament is aware of the provisions of the Arbitration Act and the Contract Act and the consequential remedy available under Section 9 of  the Code of Civil Procedure i.e. to avail of right of civil action in a competent Court of civil jurisdiction. Nonetheless, the Act provides the additional remedy”.
The Hon’ble Supreme Court has further held that in view of the object of the Act and by operation of Section 3 thereof, it would be appropriate that these Forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve all the consumers of the cumbersome arbitration proceedings or civil action unless the Forums at their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate Forum for adjudication of the disputes would be otherwise those given in the Act.
29.  The Hon’ble Supreme Court of India in “Lucknow Development Authority Versus M.K. Gupta, 1994 (1) CLT 1” has observed that a legislation which is enacted to protect public interest from undesirable activities cannot be construed in such narrow manner as to frustrate its objective. It has been further observed in the said authority that any attempt to exclude services offered by statutory or official bodies to the common man would be against the provisions of the Act and spirit behind it. The Hon’ble Supreme Court of India has further observed that truly speaking it would be a service to the society if such bodies instead of claiming exclusion subject themselves to the Act and let their acts and omissions scrutinized, as public accountability is necessary for healthy growth of society.
30.  In “General Manager, Telecom Versus M. Krishnan & Others” (supra), the Hon’ble Supreme Court has held that the special law prevails over the general law. But the point whether the Consumer Protection Act is a special enactment or a general law has not been discussed. On the other hand, in view of the other judgements, reference of which has been given above, the Hon’ble Supreme Court has declared the Consumer Protection Act as a special legislation.  Time and again it has been held by the Hon’ble Apex Court of country that where a law is declared after thorough discussion, only then it is held as a binding precedent and not otherwise. 
  His Lordship Markandey Katuj, J. in “State of U.P. Versus Jeet S. Bisht” (supra), in para No.66 and 67 of the judgement has observed as under :-
“66.    It is well settled that a mere direction of the Supreme Court without laying down any principle of law is not a precedent. It is only where the Supreme  Court lays down a principle of law that it will amount  to a precedent. 
67.  In Municipal Committee, Amritsar Vs. Hazara Singh, AIR 1975 SC 1087, the Supreme Court observed that only a statement of law in a decision  is binding. In State of Punjab Vs. Baldev Singh, 1999 (6) SCC 172, this Court observed that  everything in a decision is not a precedent. In Delhi Administration Vs. Manoharlal, AIR 2002 SC 3088, the Supreme Court observed that a mere direction without laying down any principle of law is not a precedent. In Divisional Controller, KSRTC vs.ahadeva Shetty, 2003 (7) SCC 197, this Court observed as follows: 
“….. The decision ordinarily is a decision on the case before the Court, while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. The scope  and authority of a precedent should never be expanded  unnecessarily beyond the needs of a given situation. The only thing binding as an authority upon a subsequent  judge is the principle, upon which the case was decided…..”. 
31.     The Hon’ble National Commission in “Union of India and Others Versus Jagdamba Rice Mills, 1993 (1) CLT 705, while discussing Section 7-B of the Indian Telegraph Act and referring to the authority styled as Santokh Singh Versus Divisional Engineer Telephones, Shilong, AIR 1990 Ghuwahati 47, has observed that the Government of India has itself taken a policy decision to the effect that all the requests and reference to Arbitration under the Indian Telegraph Act shall be rejected and Arbitrator shall be appointed only in such cases where subscriber approaches a court with a request for arbitration and court orders for the same. So when the Government of India to be more specific Telecom Authority itself is not willing to refer the dispute concerning the telegraph apparatus etc. to the Arbitrator except upon the orders of the court, then it does not behoove to the opposite parties to raise an objection under Section 7-B of the Telegraph Act.
32.    Now, it is also a settled law that where two interpretations of statute/law are possible, then the one favouring the consumer is to be taken. Moreover, in case of petty consumer disputes, to direct a poor consumer to approach the Central Government for appointment of an Arbitrator for the adjudication of his small dispute, would be just the denial of justice to him especially when the legislature has enacted a consumer friendly legislation for better protection of the consumer rights and the remedy is available at the door step of the consumer as the District Consumer Forums have been established at every District head quarter of a State. 
33.  The Consumer Forum established under the Consumer Protection Act, 1986 does not exercise jurisdiction upon each and every matter, rather the jurisdiction of the Consumer Forum can be invoked only on the matters/disputes where the consumer element is involved. So when a dispute where the rights of the consumers are to be adjudicated there only the consumer courts, specially enacted for the said purpose, have the jurisdiction and all other Forums fall subordinate to it. It is now clear that the Consumer Protection law is not a general law, but a special law enacted for the better protection of the interests of the consumers. Where there is a deficiency in service and unfair trade practice, the provisions of the Consumer Protection Act, 1986 can be invoked irrespective of any other statute dealing with the same matter. The remedy under the Consumer Protection Act is an additional and special remedy. Moreover, even as per the provisions of the Telecom Regulatory Authority of India Act, 1997, the provisions of the Consumer Protection Act, 1986 prevail upon the other provisions/enactments relating to telecommunication. So we hold that the Fora established under the Consumer Protection Act has jurisdiction to entertain the matter concerning the disputes relating to telecommunications. 
34.  Now coming to the merits of the case, the connection of the complainant was disconnected without any notice. However, opposite party No.1, who is the dealer, has pleaded that he has no role to play in the disconnection of the connection of the complainant after the activation of the same. The disconnection, if any, has been done by opposite party No.2. Opposite party No.2 i.e. Bharat Sanchar Nigam Limited, who is the telecom service provider, has pleaded that in fact the connection is working and it was Charged/extended for validity in last month. However, no reason has been given as to why the connection of the complainant was disconnected. After the filing of the present complaint, opposite party No.2 has restored the services, but without any intimation to the complainant and the complainant could not use the said connection because he was under the impression that his SIM is not working. The complainant has definitely suffered loss and harassment at the hands of opposite party No.2. Opposite party No.2 has failed to give any explanation for the deficiency in service on their part. Opposite party No.2 is thus grossly deficient in service and is liable to be burdened with exemplary costs. In view of this, this complaint is allowed and opposite party No.2 is directed to activate the connection of the complainant for a period of another three months with due intimation to the complainant without charging any extra sum for the same. Opposite party No.2 is further directed to pay a sum of Rs.10,000/- to the complainant for the loss and harassment suffered by him. Opposite party No.2 is further directed to pay a sum of Rs.2000/- as litigation expenses to the complainant. The orders be complied with within a period of thirty days from the date of receipt of its copy. File be consigned to the record room. 
Pronounced  11.9.2009 
                                              (Sanjay Garg)                                         (Tarlok Singh) 
                                                 President                                                 Member
courtesy: advantage consumer.com 

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