… AWAKENING CALL FOR CONSUMER FORUMS- STILL STRUGGLING FOR SURVIVAL

Notification no. S.O. 390[E] dated 15th April 1987 was an historical event, the day Consumer Protection Act came into force in the whole of India except the state of Jammu &Kashmir  .Yet it was not a pleasing note for the big business houses. Resentments and opposition had started  from the day one and consumer forums could not be established immediately .The first consumer forum was set up on 19.8.1988 in Delhi.Since then the Govt ,the Apex court had always extended helping hand to this welfare act , enhanced the scope of consumer forums  by every new  amendment.. Supreme court also through its various judgements explained  the law by further  widening the  scope of consumer foras In the matter of Dr J J Murchant V Shrinath Chaturvedi in2002 [SC] page 635,Supreme Court made it ample clear that consumer foras can take evidence ,cross evidence through affidavits,can appoint local commissioner etc There was a lot of hue and cry from medical professionals for coming out of the ambit of this act for medical negligence on their part but Supreme court by this order set the controversy at rest Number of other cases following this judgement further confirmed the medical profession answerable to consumer courts yaThe landmark judgement of Methew Jacob in 2005 had drawn the demarcation line  between the  criminal and compensation cases under consumer protection act for the purpose of adopting yard stick for both situations  .In yet another  case of New India Insurance Co.Ltd. V Srinivasan decided in 2002 by the Supreme court ,it was held that consumer foras need not go into technicalities of CPC or Indian evidence act and foras may go by the summery procedure laid down in the act itself in section 13.

But today it is a matter of great  concern that there is  a visible SHIFT OF ATTITUDE OF THE APEX COURT marked through its  various judgements in the recent past .Year 2009 was not a good year for consumer forums In  the case of Martin D’Souza in medical negligence matters,Supreme court emphasized for  making expert opinion compulsory before issuing notice to the doctors[though later on this condition  has been partly modified by another bench returning to earlier position ],in case of Bihar School Examination Board Versus Suresh Prasad Sinha,SC again  kept examination Boards out of the purview of Consumer Courts in education matters. Recently in  case of General Manager Telecom Versus M Krishnan and others , telecom matters have been withdrawn from the jurisdiction of consumer foras .As such , we  need to check where the things are going wrong.It has been observed that in some cases Apex Court has shown its unhappiness over the attitude of some forums and commissions for going beyond their jurisdiction and powers .Presidents of some state commissions who are the retired judges of the High court, still  act as if they are  having powers of writ with them .In some matters forums and commissions had technically gone wrong and the Apex court has shown concern over these irregularities Not only that , the Govt’s attitude towards consumer foras is no more friendly and favourable in providing   ,infrastructure ,functioning equipments etc.

Let us now go back to the starting point to find out the roots .Initially the act had to deal with only goods defined under sale of goods act ..The drastic changes were brought  to the act in 1993 when number of services were brought under the ambit of CPA and it was a real jolt to the whole industrial, commercial set ups as well as professional groups..Section 2(O) of the act was modified to this effect as hereunder-

“ services means service of any description which is made available to potential users and includes but not limited to the provisions 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 purviewing of news or other information ……….”

    After this amendment ,flood of cases in protest were filed by number of service providers and all tried to get away  from the jurisdiction of consumer courts Big business houses ,manufactures and  services providers attacked on the constitutional validity of the act itself .The  case of Vishwabharti house building co-operative society v Karnataka state &others SC 2002 came up for hearing before the Hon’b  Supreme court It  was filed  before Karnataka State Commission,routed to High court of Karnataka and then to Supreme court

Legal issues raised were that CP Act is  unconstitutional ,and consumer forums functioning  as parallel judicial system to civil courts is unlawful  High court of Karnataka  held:-Act not unconstitutional Supreme court further confirmed the order of the High court of Karnataka making following observations

“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 .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 is how we landed up to a situation that  consumer courts are still functional as on date But as stated above situation is not favourable for consumer forums which are overburdened with number of cases   This  over burden is not only due to consumer awareness but also due to some delaying tactics adopted by the litigating parties during the proceedings .It is unfortunate  but true to remark that more than 50% consumer cases are fought by advocates and they have made cosumer forums civil court by taking adjournments,sending proxy with no preparation or clerks coming for date. Presidents of the forums being retired judicial persons also have their mind set tunned to civil procedure code ,go more with the tendency of advocates rather than coming to the level of consumers to make the forum friendly court Advocates promptly  refer to the application in their hand about Order so and so, Rule so and so read with sec 151 of CPC Application acceptd ,copy given to the complainant for comments Poor consumer is in a flux-does not know what is Order and Rule of CPC and on the next date comes with advocate .No president discourages advocates from quoting   CPC provision ,rather feels friendly with advocates and subsequently consumer forums are now functioning like  of civil court presided over by the presidents who come after retirement from civil court  .This was really not desired ,neither is the intention of this welfare legislature

The posts of Members and Presidents remain vacant for a longer period and even if selection process is over,,joining takes months together waiting for the selected candidates to  retire from their posts in the civil court 

The present situation is not only against the interest of consumers but also is in  inconsistency of the law laid down by the Honourable Supreme court

The debate is ripe now on the issue as to whether sitting judges should apply for the posts in tribunals or not .The issue is taking momentum for the reasons –firstly sitting judges may  try to influence the selection process and secondly if their tenure is yet to be over, they make the department wait for their retirement.Justice R S Sodhi ,former Delhi High  court judge feels judges applying while still in service denigrate the judicial system.Sharply criticizing this phenomenon Justice Sodhi said ‘this is the crisis of morality within the judiciary .Its so deep that we have a situation where judges are vying with each other for a post after retirement .Ideally,in my view a sitting judge should never apply.What kind of judicial independence we are talking about if judges start applying like this with the government”

Let us all hope ,redressal agencies as well as Govt takes a note of it and adequate measures are taken to make consumer forums better.

 

Dr Prem Lata

 

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