CHALLENGES, STRENTHS AND FUTURE OF CONSUMER FORUMS SET UP UNDER CONSUMER  PROTECTION ACT

 

Ever since the act has come into force,  a lot of hue and cry over the authority of the forums among big business houses was made. The Apex court through its various pronouncements gave broader description and wider scope to the act but at the same time it also  faced numerous problems  and several attacks. Even the act it self was challenged in the year 1996 before the court of law and its legal validity was questioned when a big business man was ordered to be sent to jail for non compliance of its order . The  questions were raised as to whether Lok Sabha is empowered to pass such an act by which  consumer forums could run as a  parallel judicial system  against  the civil courts with much more discretionary powers.The matter was finally resolved by the Apex court in a case of Vishwabharti house building co-operative society v Karnataka state &others SC 2002 and the Supreme Court held  that the Consumer Protection Act is a constitutionally  valid law passed by the Lok Sabha,and parliament is  competent to pass such welfare Act.Further,the forums constituted under this act are competent to perform their work assigned to them in all respects .These forums can also invoke the provisions of section 27 of the act for execution of their order.

 

Legal issues raised  in the above case were as hereunder :

1.      Act is unconstitutional  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 of the act  is illegal

  High court of Karnataka  held:

1.      Act not unconstitutional

2.      order for compliance should be sent to civil court for execution

       Supreme court held:

1.      Act is made under the provisions of the constitution vii schedule ,list i ,ii & iii Article 246 part- 11 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 is  very much valid. Sec. 25 is an option to the consumer whether want to go to civil court or not.for execution of the order passed by consumer forum

 

NOTE: Sec.25&27 were given elaborate explaination in amendment 2002 after this judgement

 

Consumer became a king after this judgement and Apex court also by its numerous judgements further strengthened the forums by giving more teeth to this act . At times new dimensions are given through certain  important pronouncements which made a history and  which have become precedence for future cases of similar nature under the similar circumstances

Just after this judgement , supreme court of India cleared a big obstacle coming in the way to haul up medical professionals in medical negligence cases .In a case of Dr J.J. Merchant and others v/s Shrinath Chaturvedi  CTJ 757SC[CP]  ,doctors had attacked swearly on the competency of the forums to deal with the professional matter where members of the forums are not expert in the medical area .While deciding this case in the year 2002 , Apex court made very important points clear :

“that consumer foras can take evidence ,cross evidence through affidavits,can appoint local commissioner and can obtain  expert opinions on the subject  ” and set the controversy at rest. It further said that three members in the fora can at the most  be expert in three areas only and it would be an impossible situation for any court to decide the cases if experts in every field are desired to be there among judges

 Number of other cases following this judgement further confirmed the medical profession answerable to consumer courts     

Again in the year 2005 ,a criminal case against doctor got wide  publicity for the reason Supreme court had drawn demarcation line between the remedy in civil case and criminal case .It was held that the yardstick to scale the negligence in civil compensation case before consumer court and case before criminal court cannot be the same .A case which could not be successful before criminal court cannot be said to be unsuccessful before consumer court also. It was further held that the role of medical association is disciplinary in nature and does not compensate the aggrieved consumer .Hence professional in the field of law ,medical, chartered accountants etc are all liable to be questioned for deficiency in services .

Still another jolt came to the consumer courts when Martin D’souza v/s Mohd Ishfaq case in 2009  had put a big barrier on admission of medical negligence cases before consumer courts by making expert opinion mandatory before sending notice to the respondent. The issue had brought a flood of objections and appeals from the affected groups. But once the Supreme Court decided that no notice was to be given to doctors before expert opinion, it became binding for all lower courts. Now the same Apex court has reversed its stand by another pronouncement on 8th March 2010 in the matter of V Krishna Rao v/Nikhil superspeciality Hospital &others by holding that:

“Expert opinion is needed to be obtained only in appropriate cases of medical negligence and the matter may be left to the discretion of the consumer forums especially when the retired judges of Supreme Court and High courts are appointed to head the National Commission and State Commission”

While saying so, the Apex court referred to the earlier decision of this court pronounced by the larger bench comprising three judges bench in the matter of Dr J.J. Merchant and others v/s Shrinath Chaturvedi 2002 CTJ 757SC[CP] and expressed its opinion that the general guidelines given in Martin D’souza case are contrary to the findings of the Supreme court’ larger bench. The court now notes:

“The general directions given in para 106 in D’Souza case to have an expert evidence in all medical cases is not consistent with the principle laid down by the larger bench accepted as position that only in appropriate case, expert opinion may be made and the matter is left to the discretion of consumer forums and commissions”

Not only this, the order has also been found contrary to the doctrine of ‘Res Ipsa Liquatur’ discussed in detail in the first landmark judgement pronounced by three judges bench in the matter of Indian Medical Association V/S V.P.Shantha & Others 1995 CTJ 969SC{cp}

            A great deal has been done by the supreme court of India in strengthening the forums ,but forums are still struggling for their survival for various reasons. Consumer forums  are over-burdened with number of cases having  inadequate infrastructure    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 like  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 tuned 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 accepted ,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  when provisions of consumer protection act as well as judgements pronounced by the supreme court clearly bar to refer CPC provision when procedure before the forum is specified under sec 13 of the act.. But retired judges appointed as presidents  feel friendly  with advocates rather than consumers appearing in person and subsequently consumer forums are now functioning like  civil court presided over by the presidents with such attitude  .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.

 

Author: Dr Prem Lata

Member Consumer Forum,Delhi

 

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