LAW ON APPEAL AND TRANSFER OF CASES UNDER CONSUMER PROTECT ACT 

 

Karnataka State Consumer Dispute Redressal Commission has dismissed three applications filed by the complainants for transferring 139 cases to one forum for adjudication.The facts in brief are that 139 flat holders filed their consumer complaints against one builder named as Sovereign Developers And Infrastructure Pvt. Ltd. As per rules framed  under CP Act in Bangalore State , complaint for below 20 laces are to be filed before the Urban District Consumer Dispute Redressal forum Bangalore and they were allotted to four district forums in Banglore.All the flat owners /Complainants filed three applications for transferring all 139 case to Additional forum No-1giving following reasons-

a) Post of President and Member in Additional D. F.-2 are vacant

b) President in Additional D. F.-3 is retiring.

c) Four forums if deliver different /conflicting orders in the similar matters in their own way may cause prejudice to the litigants.

After considering all the facts and circumstances of the case, State C ommision observed that all the cases pending before the various forums were not of similar nature, hence dismissed all three  applications  on 29.04.2014 with the following observations -

1) All the complaints were not of similar nature and each case was to be considered on its own merits though opposite party was the same.

                        2.) Transfer of cases from one forum to another will indirectly create doubt of integrity and competence of the Presiding officer/judicial officers.

                        3) Vacancy of post is administrative function of the State Commission who in due course has already filled the vacancies and notification from the Govt. is awaited. More so, this cannot be the ground for transfer of cases.

                        4) In case all the cases 139 in number are clubbed together in one forum, there is likelihood of delay in disposal of all the complaints.

 It is pertinent to note that  power to transfer the case from one forum to another vests with the State commission only as per section 17 A of the act  and State commission has the discretion to do so or reject depending upon the facts and circumstances .State commission may take such action either on the application by complainant or on its own . No consumer forum can transfer the case to another forum even when complainant apply for the same.Complainant need to apply to State commission only for transferring his complaint by giving reason and state commission has the discretion to consider or reject the request.

             In the above case, filing applications by the complainant to the forum for transfer were also not correct.

Further ,in the same manner ,transfer of a case from consumer forum of one state to consumer forum in other state & case from one  state commission to another state commission can be done by the National Commission either on the application by the complainant or by its own under  section  22B of the act.  

Before the amendment in 2002 in the consumer protection act ,there was  a lot of confusion due to conflicting judgements passed by the national commission and High courts in the country.As per article 144 of the constitution supreme court orders are binding upon all high courts of the country and orders of high court of the state are binding on all tribunals ,forums ,quasi judiciary systems under that  state. On the basis of this rule of law complainant when not satisfied with the order of the forum or commission filed appeals in the high court instead of going to national commission because ther was no bar till that time . With the result, National Commission and High courts had given number of conflicting judgements on the same issue in appeals arising from the same order. Keeping in view this situation,specific provisions were made  through amendment 2002 and section 17,19and 23 had specifically provided the procedure and power for filing appeals against the judgments passed by District forum ,State Commission and the National Commission .

Section 15 gives right to the complainant to file an appeal to State Commission within thirty days from the date of order if not satisfied from the order by District forum .

Section 17 of the act provides powers and jurisdiction  to the state commission to entertain appeals against the orders of any district forum within the state by submitting surety amount of 50% of the decretal amount or 25,000/- whichever is less.It has been made very clear through various judgments  pronounced by the courts and specifically held in the matter of Manimalan V/S  K Subrayan AIR 2004 Mad 446 that the consumer cannot invoke the jurisdiction of the high court under article 227 of the constitution against the order of district consumer forum.It has also got the power to call for records in any case pending before any district forum in the state if thought it proper by  the State commission to find any material irregularity.

Further ,it has also been held in the matter of M/S Shree Jagannath Constructions  V/S  M/S Kotak Mahindra Private Ltd 2001(1)CRP 128 that in case proceedings before the civil court have been instituted prior to institution of proceeding before the fora constituted under the act and are pending on the same subject and same issue, consumer forums or commissions shall not entertain the case under such circumstances .

Section 19 gives the same powers to the National Commission also .As per this section, any person aggrieved by an order made by the State Commission may prefer an appeal before the National Commission by paying/depositing surety amount 50% of the decrial amount or Rs 35000/-whichever is less before the National Commission.Time available to consumer for filing an appeal is 30 days from the date of order.   

Again, aggrieved person by the order passed by the State Commission cannot invoke the jurisdiction of high court under article 227 of the constitution as held in the matter of P .Subramaniyan v Oriental Insurance Company Ltd AIR  2004 Mad 494

National commission enjoys the power of administrative control on all the state commissions and consumer forums in the country and can call for any records etc.

Finally ,an appeal against the order passed by the National Commission can be filed before the Supreme Court of the country  within 30 days from the date order .

The most powerful provisions in the act are about the enforcement of the orders passed under this act vide section 27. Consumer courts enjoy powers of first class Magistrate to impose penility upto 3000/- coupled with upto three years imprisonment in case of non –compliance of the consumer court order .Intrestingly ,such penality or imprisonment is also open to challenge under section 27A of the act to the respective commission ,both on fact and law .

A case named as

Vishwabharti Housebuilding Co-operative Society v Karnataka State &others SC 2002 was filed before the Karnataka State commission which travelled till supreme court on the following law points

1.      Act is unconstitutional as running as parallar judiciary to civil courts which is against the provisions of constitution .

2.      Order of the consumer forum should be sent for execution under sec 25 to civil court ,sec 27 is illegal

  High court of Karnataka  held:

 1.      Act not unconstitutional

 2.      order for compliance should be sent to civil court

 Supreme court held:

1.      Act is made under the provisions of the constitution vii schedule ,list i ,ii & iii Article 246 part- 2 wherein it is said that parliament can constitute any judicial system other than Supreme court & High court

2.      Since procedure is laid down in the act itself under sec. 13 as a summery procedure and accordingly execution is also to be done under summery procedure Hence sec. 27 very much valid. Sec. 25 is an option to the consumer whether want to go to civil court or not.

This judgment by the Supreme court gave oxygen to consumer courts to survive and then immediately after this order Sec.25&27 were given elaborate explaination in amendment 2002.

 

 

 

 

---------------------------------------------------------------------------

Previous

Next