SUGGESTIONS TO INSERT CLAUSES IN THE ARBITRATION ACT

Regarding proposal to insert more clauses of Arbitration for consumer settlements,Indian arbitration and conciliation act does not bar consumer related cases to be dealt under that act which is very much relevant for all type of cases .When a full fledge act is already there ,why arbitration clauses are further suggested to be added to make the act more complicated .

We may refer to the Supreme court cases on the subject when Apex court had an occasion to criticise the practice of the commission in appointing arbitrators in pending disputes in Skypak Couriers Ltd. V Tata Chemicals Ltd. 2002(SC)(CP) AIR 2000SC 2008 and Neeraj Munjal and others V Atul Grover 2005 CTJ589 (SC)(CP)2005 Arb. LR. 22(SC) .In Neeraj Munjal’s case  Apex court on this particular issue of appointment of arbitrator during the proceedings under consumer protection act ,  held that such appointment is not desired when consumer courts are competant enough to deal even complicated cases through summery provision. Appointment of arbitrators defeats the purpose of the act of speedy disposal.Court held as follows:

‘ Section 22 of the consumer protection act provides that the commission shall have the power  of a court. These powers would include the powers to call for documents and take evidence either by itself or on commission .However the final adjudication has to be by the commission .For the  purposes of this order, we will presume without laying down any law in this behalf,that commission may even refer dispute to arbitration /concilliation .However such reference to arbitrator could only be under the provisions of Arbitration act 1940 or Arbitration and concilation act 1996.There is no provision in law and we consider it an unhealthy practice for courts /commissions /tribunals to abdicate their duties and functions and to delegate adjudication of disputes before them to third patrties.The adjudication can only be by the concerned courts/commissions/tribunals .For an effective adjudication, the commission /court must address itself to the evidence ,documents ,respective case of the parties including submission on their behalf  and then give a finding on that bases.’

Now coming to the consumer protection act and its provisions which empower the consumer forums to give relief to the consumers,section 14 of the act specifies as to what relief can be granted to the consumer after adjudicating the matter on merits :

!) Cost for actual loss

!!) Damages/compensation for mental agony and harrasment etc

In decided cases by the apex court,this has also been held that incidental expences are not to be paid by way of relief under section 14 of the act.

Certainly there is no provision of settlement under this section which specifically deals with the reliefs to be granted .More so ,there are other provisions in the act which speak ,once the case has been admitted in the forum the same cannot be tranferred to other courts /tribunals or forums and  are to be adjudicated by the forum.Under  section 13 of the act ,forum has to take preliminary hearing for admission  of the case and look into various espects and technicalities before admission .

Hence no system is valid or bears the strength  if contrary to the provision of the existing law.However settlement by the parties during the proceedings before the courts or outside the courts are always done and settlement is converted into the form of decree or order which becomes non-challegable once the parties signed to their consent. But for this,no special provisions are to be made ,they are being done as a routine matter for years together 

It is not out of place to mention here that while adopting the provisions of section thirteen of the act , foras are also  disposing of number of cases on the first date itself when opposite party agrees to redress the grievance .Of course there is a persuation by the courts to reach to mutual consent and the order is made on the basis of their settlement and is stated ‘disposed of as settled within the parties’  or ‘withdrawn as settled’ and such method cannot be said deviation from the procedure under section 13 of the act as forum has not stopped the proceedings as stipulated in the act .If litigating parties come to some settlement ,it is always welcomed by all courts ,tribunals anf forums . Since  consumer forums are set up for adjudicating and they cannot deny or deviate from their main  function and adopt another one without having such provisions in the act.

After all the discussion above ,we yet feel the role of NGO,s and ministry very much required and desired to set up redressal mechanism for setteling the grievances BUT outside the court and not within the court proceedings.There may be a separate institution for mainly and only consumer related cases set up under arbitration and conciliation act 1996 which can prove very effective and is really a need of the day  

 

Dr Prem Lata 
 Member, consumer forum Delhi

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