9911796707
TMI Blog2003 (1) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution of India questioning the constitutionality of the said Act. The contentions raised on behalf of Appellants Petitioners are as under: (1) (a) The Parliament is not empowered to establish hierarchy of Courts like the District Fora, State Commission and the National Commission parallel to the hierarchy of Courts established under the Constitution, namely, District Courts, High Courts and Supreme Court in the absence of a suitable amendment made in the Constitution of India in terms of Article 368 thereof. (b) Such hierarchy of consumer courts established under the Act would result in conflict of decisions with the hierarchy of courts established under the Constitution dealing with similar matters. (2) The Parliament having regard to the provisions of Article 323-A 323-B of the Constitution of India could not enact the Act by establishing forums which are substitutes of the Civil Courts including the High Court. (3) The provisions of the said Act strike at the independence of the judiciary. (4) As the Act does not contain any provision to transfer a case from one consumer court to another and furthermore the forum and the Commissions having no po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... protection of the interests of consumers and for the said purpose, to make provision for the establishment of Consumer councils and other authorities for the settlement of consumer disputes and for matters connected therewith, as would appear from the Statement of Objects and Reasons of the Act. It further seeks inter alia to promote and protect the rights of consumers such as- (a) the right to be protected against marketing of goods which are hazardous to life and property; (b) the right to be informed about the quality, quantity, potency, purity, standard and price of goods to protect the consumer against unfair trade practices: (c) the right to be assured, wherever possible, access to an authority of goods at competitive prices; (d) the right to be heard and to be assured that consumers interests will receive the consideration at appropriate forums; (e) the right to seek, redressal against unfair trade practices or unscrupulous exploitation of consumers; and (f) right to consumer education. The legislative competence of the Parliament and the State Legislatures respectively to provide for creation of courts and tribunals as envisaged in different lists co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing observations made by Shinghal, J. while delivering a partially dissenting judgment in In Re: the Special Courts Bill 1978 reported in [1979] 1 SCC 380 at page 455; The Constitution has thus made ample and effective provision for the establishment of a strong, independent and impartial judicial administration in the country, with the necessary complement of civil and criminal courts. It is not permissible for Parliament or a State Legislature to ignore or bypass that Scheme of the Constitution by providing for the establishment of a civil or criminal court parallel to a High Court in a State, or by way of an additional or extra or a second High Court, or a court other than a court subordinate to the High Court. Any such attempt would be unconstitutional and will strike at the independence of the judiciary which has so nobly been enshrined in the Constitution and so carefully nursed over the years. The argument of the learned counsel is fallacious inasmuch as the provisions of the said Act are in addition to the provisions of any other law for the time being in force and not in derogation thereof as is evident from Section 3 thereof. The provisions of the said Act cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of any law for the time being in force requiring traders to display information in regard to the contents, manner and effect of use of such goods; with a view to obtaining any relief provided by or under this Act; (d) consumer means any person who- (i) buys any goods for a consideration which has been paid or promised or party paid and partly promised or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such persons but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovides for the directions which can be issued by the District forum on arriving at a satisfaction that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the deficiencies in services have been proved. Section 15 provides for an appeal from the order made by the District Forum to the State Commission. Section 16 provides for composition of the State Commission which reads thus: (1) Each State Commission shall consist of- (a) a person who is or has been a Judge of High Court, appointed by the State Government who shall be its President: Provided that no appointment under this clause shall be made except after consulation with the Chief Justice of the High Court. (b) two other members, who shall be persons of ability, integrity and standing and have adequate knowledge or experience of, or have shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration, one of whom shall be a woman; Provided that every appointment under this clause shall be made by the State Government on the recommendation of a Sele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y point or points, the same is to be referred to the other member for hearing thereon and the opinion of the majority shall be the order of the District Forum. By reason of Section 18, the provisions of Section 12,13 and 14 and rules made thereunder would mutatis mutandis be applicable to the disposal of disputes by the State Commission. Section 23 provides for a limited appeal to the Supreme Court from an order made by the National Commission i.e., when the same is made in exercise of its original power as conferred by sub-clause (i) of clause (a) of Section 21. Section 25 provides for the enforcement of the orders by the District Forum, State Commission or the National Commission which is in the following terms: Enforcement of orders by the District Forum, the State Commission or the National Commission: Every order made by the District Forum, the State Commission or the National Commission may be enforced by the District Forum, the State Commission or the National Commission, as the case may be, in the same manner as if it were a decree or order made by a Court in a suit pending therein and it shall be lawful for the District Forum, the State Commission or the National Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g legislative power the most liberal construction should be put upon the words so that the same may have effect in their widest amplitude. (emphasis added) 10. Again in Union of India v. Harbhajan Singh Dhillon, SCR [1972] 2 SCR 33. at p. 51 it was observed as follows: SCC pp. 791-92 para 21. 21. It seems to us that the function of Article 246(1), read with Entries 1-96 List I, is to give positive power to Parliament to legislate in respect of these entries. Object is not to debar Parliament from legislating on a matter, even if other provisions of the Constitution enable it to do so. 11. In Dhillon decision it was held that what one has to ask is whether the matter sought to be legislated is included in List II or in List III and no question has to be asked about List I. If the answer is in the negative, then it follows that Parliament has power to make laws with respect to that matter or text. 12. It has thus been clearly enunciated that the power of Parliament to enact a law, which is not covered by an entry in List II and List HI, is absolute. While Article 323-A and 323-B specifically enable the legislatures to enact laws for the establishment of tribunals in relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act for redressal of grievances of consumers . The rights of the parties have adequately been safeguarded by reason of the provisions of the said Act inasmuch as although it provides for an alternative system of consumer jurisdiction on summary trial, they are required to arrive at a conclusion based on reasons. Even when quantifying damages, they are required to make an attempt to serve the ends of justice aiming not only at recompensing the individual but also to bring about a qualitative change in the attitude of the service provider. Assignment of reasons excludes or at any rate minimizes the chances of arbitrariness and the higher forums created under the Act can test the correctness thereof. The District Forum, the State Commission and the National Commission are not manned by lay persons. The President would be a person having judicial background and other members are required to have the expertise in the subjects such as economics, law, commerce, accountancy, industry, public affairs, administration etc. It may be true that by reason of sub-section (2-A) of Section 14 of the Act, in a case of difference of opinion between two members, the matter has to be referred to a t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the benevolent pieces of legislation intended to protect a large body of consumers from exploitation. The Act provides for an alternative system of consumer justice by summary trial. The authorities under the Act exercise quasijudicial powers for redressal of consumer disputes and it is one of the postulates of such a body that it should arrive at a conclusion based on reason. The necessity to provide reasons, howsoever, brief in support of its conclusion by such a forum, is too obvious to be reiterated and needs no emphasizing. Obligation to give reasons not only introduces clarity but it also excludes, or at any rate minimizes, the chances of arbitrariness and the higher forum can test the correctness of those reasons. Unfortunately we have not been able to find from the impugned order any reasons in support of the conclusion that the claim of the appellant is unrealistic or exaggerated or excessive . Loss of salary is not the sole factor which was required to be taken into consideration. 12. While quantifying damages, Consumer Forums are required to make an attempt to serve the ends of justice so that compensation is awarded, in an established case, which not only serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are required to have knowledge and experience in dealing with problems relating to various fields connected with the object and purpose of the Act, viz., protection and interest of the consumers. The said knowledge and experience would enable them to handle the consumer disputes coming up before them for settlement in consonance with the requirement of the Act. To say that the members must have adequate knowledge or experience in the field to which the goods or services, in respect of which the complaint is made, are related would lead to impossible situations. See also Dr. J.J. Merchant and Ors. v. Shrinath Chaturvedi, reported in JT (2002) 6 SC 1 and Synco Industires v. State Bank of Bikaner Jaipur and Ors., reported in [2002] 2 SCC I. By reason of the provisions of Section 3 of the Act, it is evident that remedies provided thereunder are not in derogation of those provided under other laws. The said Act supplements and not supplants the jurisdiction of the civil courts or other statutory authorities. The said Act provides for a further safeguard to the effect that in the event a complaint involves complicated issues requiring recording of evidence of experts, the compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of High Court and this Court under Article 226/227 of the Constitution of India and Article 32 of this Court apart from Section 23 of the Act provide for adequate safeguards. Furthermore, primarily the jurisdiction of the forum/ commissions is to grant damages. In the event, a complainant feels that he will have a better and effective remedy in a civil court as he may have to seek for an order of injunction, he indisputably may file a suit in an appropriate civil court or may take recourse to some other remedies as provided for in other statutes. We, therefore, agree with the judgment of the Kamataka High Court. However, we are not in a position to agree with the observations of the High Court as regard the interpretation of Section 25 of the Act. The High Court interpreting the said provision has made the following observations, which is impugned herein in Civil Appeal No. 9927 of 1996: On reading Section 25 of the Act, in our view, it does not empower the District Forum to pass such an order. If at all the Forum wants to enforce the order, it has to send the order to the concerned Court which has jurisdiction over the area, which is not done here. So, without entering i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eded, there is conceded also anything without which the thing itself cannot exist) (Vide Earl Jowitt s Dictionary of English law, 1959 Edn., P. 1797). Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done then something else will be supplied by necessary intendment. Such a construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration. A contrary view is likely to result in grave hardship to the applicant who may have no means to subsist until the final order is passed. There is no room for the apprehension that the recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist. It is quite possible that such contingency may arise in a few cases but the prejudice caused thereby to the person against whom it is made is minimal as it can be set right quickly after hearing both the parties...... In Arabind Das v. Stale of Assam and Ors., AIR (1981) Gauhati 18 F.B., it has been held as follows:- We are of f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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