CAN A NON –ADVOCATE APPEAR BEFORE THE CONSUMER FORUM

Should the authorized agent be granted permission to appear on behalf of the complainants when  he was not enrolled as an Advocate. - was a qestion of law before the Honourable  Supreme court in the  matter of C. Venkatachalam V/S Ajitkumar C. Shah & Ors, Civil Appeal No 868/2003 & Also Bar Council Of India V/S Sanjay R. Kothari 869-70/2003 Both the appeals were decided on  29 August , 2011.

There was a rare incident in the year 2002 also when Justice M.S.Janardan ,the President of State commission of Tamilnadu had to call police to control the crowd outside the state commission .On 3rd april 2002,when it was fixed for argument on the issue as to whether an authorized agent can argue the case before the commission.Sh N Chander Shekharan ,Secretary consumer welfare foundation Chennai wanted to argue the case on behalf of four complainants against appolo hospital .It became a big issue when Tamilnadu state commission issued an order on 14 Feb 2002  for open discussion on the issue and noticed/ invited consumer associations,bar associations and other interested agencies to participate in the debate.On 10th  march 2003 state commission of Tamilnadu held;

“An agent can sign ,participate in the procedure before the consumer forum/commission but cannot argue the case .”

Just the similar matter had come up before the state commission of Maharashtra also and against the order of Maharashtra state commission a writ was filed before the Mumbai HC in which court held an agent can do all the acts what a consumer can do .In order to set the controversy at rest national commission on its own opened the issue ,heard the amicus curia who referred to the  purpose of the legislature giving it utmost importance  The matter was  decided on 2 Jan 2003 which was a historical judgement .

The present case before the Honourable SC were  appeals against two cases  on the similar  subject matter in case  Of C. Venkatachalam Vs Ajitkumar C. Shah & Ors,Civil Appeal No 868/2003 & Also Bar Council Of India V/S Sanjay R. Kothari 869-70/2003 which  was finally  decided on  29 AUGUST, 2011.

 The basic issue involved in these appeals is whether a person under the purported cover of being an agent can represent large number of persons before the forums created under the Consumer Protection Act, 1986 (In short the `Act') and the Rules made thereunder.

 And the Honourable SC now in these two cases also has confirmed the order of HC of Mumbai and Held:

 ‘On consideration of totality of the facts and circumstances, the view taken by the Division Bench of the Bombay High Court in the impugned judgment cannot be said to be erroneous and unsustainable in law. Consequently, these appeals being devoid of any merit are accordingly dismissed’

 

The facts in both the cases were as hereunder

 A complaint bearing no.428 of 2000 of alleged deficiency in service was filed before the South Mumbai District Consumer Disputes Redressal Forum, Mumbai  against the two tour operators. During the pendency of the complaint, applications were filed by the opposite parties contending that the authorized agent should not be granted permission to appear on behalf of the complainants as he was not enrolled as an Advocate. The Consumer Forum considered the applications and held that the authorized agent had no right to act and plead before the Consumer Forum as he was not enrolled as an advocate.

In another complaint bearing no.167 of 1997 filed before the Consumer Forum, the majority expressed the view that the authorized agents have a right to file, act, appear, argue the complaint to its logical conclusion before the Consumer Agencies. The issue was taken to the State Consumer Disputes Redressal Commission which stayed the hearing of the matters in which authorized agents were appearing As a result, the proceedings in a large number of cases where the authorized agents were appearing had come to standstill

The interim order passed by the State Commission was challenged in two writ petitions before the Bombay High Court. The petitions were allowed by the Division Bench. The High Court held

·        that the Consumer Fora constituted under the Consumer Protection Act, 1986 have trappings of a civil court but are not civil courts within the meaning of the provisions of the Code of Civil Procedure.

·        that a party before the District Consumer Forum/State Commission cannot be compelled to engage services of an advocate.

·        that the Act of 1986 is a special piece of legislation for the better protection of the interests of consumers. The Act has been enacted to give succour and relief to the affected or aggrieved consumers quickly with nil or small expense. The Consumer Forum created under the Act of 1986 is uninhibited by the requirement of court fee or the formal procedures of court - civil or criminal.....any recognized consumers Association can espouse his cause......Even the Central Government or State Governments can act on his/their behalf...restrictive meaning shall not be consistent with the objectives of the Act of 1986... The right to appear, therefore, includes right to address the Court, examining, cross-examining witnesses, oral submissions etc..

·        that the right of audience inheres in favour of authorized agents of the parties in the proceedings before the District Consumer Forum and the State Commission and such right is not inconsistent or in conflict with the provisions of the Advocates Act, 1961.

·        that the right of an advocate to practise is not an absolute right but is subject to other provisions of the Act. According to the Division Bench, permitting the authorized agents to represent parties to the proceedings before the District Forum/State Commission cannot be said to practise law.

·        that there are various statutes like Income Tax Act, Sales Tax Act and the  Monopolies and Restrictive Trade Practices Act which permit non-advocates to represent the parties before the authorities under those Acts and those non-advocates appearing before those Forums for the parties cannot be said to practise law. The Rules of 2000 framed under Act of 1986 permit authorized agents to appear for the parties and such appearance of authorized agents cannot be said to be inconsistent with section 33 of Advocates Act.

·        that if authorized agent appearing for the party to the proceedings misbehaves or exhibits violent behaviour or does not maintain the decency and decorum of the District Forum or State Commission or interferes with the smooth progress of the case then it is always open to such District Forum or State Commission to pass an appropriate order refusing such authorized agent the audience in a given case.

Supreme court while confirming the above order of HC of Mumbai also felt  it appropriate to direct the National Commission to frame comprehensive rules regarding appearances of the agents, representatives, registered organizations and/or non-advocates to assure  following points :

An agent ;

 1) is appearing on an individual case basis

2) has a pre-existing relationship with the complainant (e.g., as a relative, neighbour, business associate or personal friend)

3) is not receiving any form of direct or indirect remuneration for appearing before the Forum and files a written declaration to that effect

4) demonstrates to the presiding officer of the Forum that he or she is competent to represent the party.

            The nutshell result is that the Apex court has finally confirmed that an agent or non-advocate can be authorized to do every thing before the consumer redressal agencies which could be done by complainat himself .

 

DR PREM LATA

MEMBER ,CONSUMER COURT,DELHI

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