INTERPRETATION OF STATUTES- BE DONE WISELY AND JUDICIOUSLY

“A statute is an edict of legislature and in construing the same ,it is necessary to seek the intention of its maker .If a provision is open to more than one interpretation,the court has to choose that interpretation which represent the true intention of the legislature”

The above observation was made by the Hon’ble  Supreme Court in the matter of National Insurance Co Ltd V Laxmi Narain Dhut 2007 CTJ 445 [SC].The issue before the court was as to whether insurance co. can repudiate the third party claim, if the driving licence of the driver is found fake .The matter  was discussed in the light of the  land mark judgement  by the same apex court in case of National Insurance co Ltd  V Swaran Singh 2004[3]SCC, 297 where in court held that third party claim under Motor Vehicle Act cannot be repudiated on the ground of fake licence of the driver giving benefit to the insurance company and depriving the person who has been injured/disabled or died  .The motor Vehicle Act is a social welfare legislature which  extend relief by compensation to victims of accidents caused by vehicle and it is why insurance of vehicle against third party is made compulsory

But by the order pronounced in the present case of Laxmi Narain Dhut ,the same Supreme Court  confirms that this benefit cannot be extended to the owner of offending vehicle who does not adhere with the terms and conditions and breaches the policy conditions .While dealing with the case under Consumer Protection Act ,this Judgement says :

 “Once the licence is fake,its renewal cannot take away the effect of fake licence and make it a valid licence and hence insured cannot take advantage of it .”

 

Hon’ble Supreme Court  while deciding the medical negligence case of Martin D’souza V Mohd Ishfaq 2009 SC delivered on 27^th Feb 2009:must have the intention to keep in mind ,the purpose of law when they said expert opinion be sought before issuing the notice to the medical practitioner

Law laid down in the case was:

                        “Whenever a complaint is received against a doctor or a hospital by a consumer forum or by criminal court then before issuing a notice to the complainee doctor or hospital ,it should be referred to a competent doctor or committee of doctors,specialized in the field to which the medical negligence relates,and only thereafter if there is a prima facie case that a notice be issued to the concerned doctor/hospital.”

With the result of this judgement ,interpretations were made  that medical board  holds the responsibility of making prima facie case against their fellow doctors .But the real question here is , in case no prima facie case is made against the doctor by the expert committee ,what shall be the role of consumer forum /commission in such medical negligence case before it .Are they supposed to dismiss the case without giving notice to the doctor.  Apex court never meant that   expert committee is supposed to   make or not make the  case.Had it been so ,then there is no need to file the case before consumer forum ,consumer can simply go to expert committee first  and matter ends with an  observation of the committee that there is no prima facie case . More so, this exercise is already being done by the medical councils/associations and it will be repeat and nothing else.Apex court if  means so, jurisdiction of consumer foras is virtually taken away in medical matters but the fact is no clear words are pronounced for this intention  If a legal man is not fit to give medical  opinion  and cannot prevail over doctors opinion,by saying so, court definitely means that medical man cannot give legal opinion and doctor cannot prevail over legal man in legal matters It has been now clarified by the same Apex court   on the subject in the matter of Malay Kumar Ganguli&Dr Kunal Saha V Dr Sukumar Mukherjee and others delivered on 7^th August 2009 that  fora is duty  bound to decide the matter finally on legal footings with the help of medical opinion read with many other facts and circumstances

Law laid down in this case is

“A court is not bound by the evidence of the expert which may be advisory in nature .The court must derive its own conclusion upon considering the opinion of experts which may be adduced by both the sides ,cautiously and upon taking into consideration the authorities on the point which he diposes ”

Meaning thereby there can be more than one expert opinions,both parties are at liberty to adduce their own expert reports

We have to always remember that judges interpret statues and are not supposed to interpret judgements .They interpret words of statues ,their words are not to be interpreted as statutes –this is the actual message which can be derived from the above discussed judgements and this is what the law is.Repeatedly warned by the Supreme Court ,it is incumbent on the adjudicating bodies to bear in mind that it is not everything said by the higher court that constitutes a precedent.The only thing superior court ’s decision binding a party is the principle upon which the case is decided.

  Unfortunately this principle has gone overlooked in yet another case  Hon’ble Supreme Court in the mater of General Manager Telecom V M Krishna &other 2009 CTJ 1062 [SC] held

‘When there is a special remedy available provided in section 7-B of the Indian telegraph act regarding disputes in respect of telephone bills then remedy under the Consumer Protection Act is by implication barred.as the  special law overrides the general law’

After this judgement ,number of private licencees of mobile phones came before the foras to get their cases dismissed in view of this judgement and number of forums dismissed also the cases pending before them .The real picture is that the Indian telegraph act was enacted as back as in 1885 when these private operators were not in the picture ,hence there was no question of any applicability of clause 7-B upon them .It  is more relevant to look into the fact that special act TRAI was enacted for them to deal with their operations  and section 14 of TRAI act  refers to the Consumer Protection Act by saying that no provisions of TRAI act shall be applicable to the individual consumers who have filed their complaints before Consumer forum/State Commission or National commission under the Consumer Protection Act which means this special act TRAI clearly spells out Consumer foras having jurisdiction to deal with the disputes of individual consumers .This explaination has been made by the Hon’ble President of Punjab State Commission .Justice S N Aggrawal Hon’ble President of the commission through his judgement in the matter of Spice communication Private Ltd V Gurinder kour &others 2010 CTJ 688  has taken real pain to set the controversy at rest finally.Now it has been made very clear that the cases filed against General Manager telecom and its nominees /authorities like MTNL Or BSNL are only barred referring to clause 7-B of the act for land lines  

 

In this context  year 2009 had not been good for the consumer forums as the Apex court ,who had been strengthening  the forums through its judgements every now and then in the past, had now in the previous year passed unfavouring judgements with warnings and caution.It is because consumer foras are not maintaining the limits drawn for them in the act itself .Presidents heading the consumer fora hardly realize that they have been now put on different pedestal to deal with consumer cases under summery procedure and are not sitting in the civil courts having powers of district judges ,when they are in fact designated as President It is why Hon’ble Justice Ashok Bhan  President of the National Commission was compelled to counsel the consumer courts to remain within the bounds of the Consumer Protection Act while delivering the order in the matter of Sahara India Commercial Corporation V Gajendra Charry,2010 CTJ 768 [CP]

In the case in hands for adjudicating by the apex commission ,the complainant had booked a house with the construction company by paying Rs 46350 as advance but later on due to financial constraints wanted to cancel the registration and requested for refund .Company referring to their clause 8 of the agreement exercised their right to forfeit 10% of the deposited amount .Consumer fora as well as State Commission of Andhra Pradesh declared the said clause arbitrary and also an unfair trade practice National commission held “consumer foras are not the courts of plenary jurisdiction having the power to strike down any act or rule or clauses of lawful agreement entered into between the parties .Clause 8 is a normal forfeiture clause in the agreement

 

Law has to be read as it is written and not how the judges would like to read

 

Dr Prem lata

 

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